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LINCOLN AT WAR
John Yoo
INTRODUCTION .............................................................................................. 4 I. WAGING WAR .......................................................................................... 12 A. James Buchanan’s Trepidations: The Constitution as a Restraint .... 12 B. Lincoln’s Decisiveness: The Constitution as a Source of Power ....... 14 C. Ex Parte Merryman: Executive Suspension of the Writ of Habeas
Corpus .................................................................................................... 17 D. The Prize Cases: The Power and Obligation of the Executive to Resist
Insurrection ............................................................................................ 20 E. Lincoln’s Initiative: Military Strategy from the President’s Desk ..... 22 F. The Emancipation Proclamation ....................................................... 25 G. The Thirteenth Amendment ................................................................ 30 II. CIVIL LIBERTIES IN WARTIME ................................................................ 33 A. Balancing Constitutional Duties: Preserving the Nation and
Upholding the Law ................................................................................. 34 B. Crime v. War: The Suppression of Northern Agitators ...................... 38 C. Congressional Agreement on Civil Liberties ..................................... 42 D. Ex parte Milligan: The Judiciary Checks Executive War Powers ..... 42 III. RECONSTRUCTION ................................................................................. 46 A. The Road to Reconstruction: Military Government During War ....... 46 B. Radical Republicans Attempt Congressional Efforts to Shape
Reconstruction ........................................................................................ 48 C. Reelection: Congress and Lincoln Spar over the Goals of
Reconstruction ........................................................................................ 52 IV. ANDREW JOHNSON AND THE POST-WAR PRESIDENCY......................... 57 A. Lincoln’s Lessons ............................................................................... 57 B. Andrew Johnson and the Limits of Executive Power ......................... 58 C. Johnson, Lincoln, and the Effective Use of Presidential Power ........ 62 CONCLUSION ............................................................................................... 63  Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law;
Visiting Scholar, American Enterprise Institute; J.D. 1992, Yale Law School; A.B. 1989, Harvard
University. Jesse Choper, Robert Delahunty, Dan Farber, and Sai Prakash provided helpful comments. I
am grateful to Benjamin Bright, Troy Housman, and James Phillips for excellent research assistance.
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INTRODUCTION
This year presents an opportune moment to reexamine President
Abraham Lincoln’s approach to executive power. This year’s 150th Civil
War anniversaries are inextricably tied to Lincoln’s exercise of his office.
On January 1, 1863, President Lincoln issued perhaps his most sweeping
invocation of presidential power: the Emancipation Proclamation, which
freed the slaves in the South.1 On July 1–3, 1863, almost two years after
Lincoln’s special message to Congress announcing the start of
extraordinary wartime measures,2 Union armies turned the tide at the Battle
of Gettysburg. On November 19, 1863, Lincoln gave the Gettysburg
Address and turned the Constitution’s mission toward popular sovereignty.3
All of these acts drew deeply on Lincoln’s broad vision of the President’s
Commander-in-Chief and executive powers in wartime.
A century-and-a-half later, our political system continues to struggle
over the constitutional questions that vexed Lincoln. In June 2013, a former
National Security Agency employee leaked classified information,
including the surveillance of domestic phone call records and foreign
electronic mail.4 Though President Barack Obama claimed that the searches
provided vital intelligence in the war on terrorism,5 critics claimed that
executive power had intruded too far upon civil liberties.6 Earlier that year,
the Obama Justice Department came under fire for its surveillance of
1. Abraham Lincoln, Final Emancipation Proclamation (Jan. 1, 1863), in ABRAHAM LINCOLN,
SPEECHES AND WRITINGS, 1859–1865, at 424, 424 (Don E. Fehrenbacher ed., 1989) [hereinafter
LINCOLN, SPEECHES AND WRITINGS]; PHILLIP SHAW PALUDAN, THE PRESIDENCY OF ABRAHAM
LINCOLN 155 (1994).
2. See Abraham Lincoln, Special Message to Congress (July 4, 1861), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 246, 252–53 (justifying and describing the calling of the militia, the
creation of a blockade, and the suspension of habeas corpus).
3. Abraham Lincoln, Address at Gettysburg, Pennsylvania (Nov. 19, 1863), in LINCOLN,
SPEECHES AND WRITINGS, supra note 1, at 536. On the point of popular sovereignty, see HARRY V.
JAFFA, A NEW BIRTH OF FREEDOM: ABRAHAM LINCOLN AND THE COMING OF THE CIVIL WAR 361
(2000) [hereinafter A NEW BIRTH]; HARRY V. JAFFA, CRISIS OF THE HOUSE DIVIDED: AN
INTERPRETATION OF THE ISSUES IN THE LINCOLN-DOUGLAS DEBATES 347 (1959) [hereinafter JAFFA,
HOUSE DIVIDED] (contrasting Lincoln’s view of popular sovereignty as a threat to equality with
Douglas’s view of popular sovereignty as consistent with representative democracy).
4. Barton Gellman & Jerry Markon, Edward Snowden Says Motive Behind Leaks was to
Expose ‘Surveillance State’, WASH. POST, June 9, 2013, http://articles.washingtonpost.com/2013-0609/politics/39856602_nsa-ron-paul-intelligence.
5. Kathleen Hennessey, Obama Defends NSA Surveillance Program, L.A. TIMES, June 19,
2013, http://articles.latimes.com/2013/jun/19/world/la-fg-wn-obama-defends-nsa-surveillance20130619.
6. Daniel Ellsberg, Edward Snowden: Saving Us from the United Stasi of America,
GUARDIAN (June 10, 2013, 6:30 AM), http://www.theguardian.com/commentisfree/2013/jun/10/edwardsnowden-united-stasi-america.
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Associated Press editors and reporters and, separately, of a Fox News
reporter in order to find the source of leaked, classified information.7 Critics
argued that the President’s exercise of his authority to enforce the criminal
laws, in this case to protect national security, violated the First
Amendment’s protection of a free press.8 In May 2013, President Obama
defended his administration’s use of unmanned aerial drones to conduct
missile attacks on al Qaeda-linked targets abroad, which had not received
any congressional approval other than the general authorization to use
military force passed in the week after the September 11, 2001, terrorist
attacks.9 In that same speech, President Obama also announced his desire to
close the detention facility at the U.S. Naval Base in Guantanamo Bay,
Cuba, despite a congressional funding ban on any transfer of prisoners from
the base to the continental United States.10 Just as Lincoln had to navigate
conflicts between the executive and legislative powers to win the Civil War,
President Obama and his immediate predecessors have confronted the same
questions in fighting a very different conflict today.
Lincoln’s example should hold great sway in our understanding of
those constitutional struggles today. No one stands higher in our nation’s
pantheon than Lincoln. Washington founded the nation—Lincoln saved it.
Without him, the United States might have lost eleven of its thirty-six
states, and ten million of its thirty million people.11 He freed the slaves,
ended Southern planter society, and ushered in a dynamic political system
and market economy throughout the nation.12 Building on Andrew
Jackson’s arguments against nullification,13 he interpreted the Constitution
as serving a single nation, rather than existing to protect slavery. The Civil
7. Mark Sherman, Gov’t Obtains Wide AP Phone Records in Probe, ASSOCIATED PRESS
(May 13, 2013, 10:53 PM), http://bigstory.ap.org/article/govt-obtains-wide-ap-phone-records-probe;
Justice Department Affidavit Labels Fox News Journalist As Possible ‘Co-conspirator’, FOX NEWS
(May 20, 2013), http://www.foxnews.com/politics/2013/05/20/justice-department-obtained-records-foxnews-journalist/.
8. Sherman, supra note 7; FOX NEWS, supra note 7.
9. Barack Obama, Remarks by the President at the National Defense University (May 23,
2013), available at http://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-nationaldefense-university.
10. Id.
11. John Yoo, Unitary, Executive, or Both?, 76 U. CHI. L. REV. 1935, 2004 (2009) (reviewing
STEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE: PRESIDENTIAL POWER
FROM WASHINGTON TO BUSH (2008)) [hereinafter Yoo, Unitary, Executive, or Both?].
12. See infra Part I.F.
13. Andrew Jackson, Proclamation (Dec. 10, 1832), in 2 A COMPILATION OF THE MESSAGES
AND PAPERS OF THE PRESIDENTS, 1789–1897, at 640, 640–41, 643 (James Richardson ed., 1897)
[hereinafter Richardson]; see also SEAN WILENTZ, ANDREW JACKSON 64–65 (2005) (“To deny the
rights of the majority in Congress to govern as it saw fit was, in this instance, an absurd breach of the
Framers’ explicit intentions.”).
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War transformed the United States from a plural word into a singular
noun.14 That nation no longer withheld citizenship because of race,15 and
guaranteed to all men the right to vote16 and the equal protection of the
laws.17 Where once the Constitution was seen as a limit on effective
government, Lincoln transformed it into a charter that empowered popular
democracy.
Part of Lincoln’s greatness stems from his confrontation of tragic
choices. As he famously wrote in 1864, “I claim not to have controlled
events, but confess plainly that events have controlled me.”18 He did not
seek the war, but understood that there were worse things than war. Victory
over the South came at an enormous cost to the nation. Close to 600,000
Americans lost their lives out of a population of thirty-one million19—about
equal to American battle deaths in all of its other wars combined.20
Approximately one-fifth of the South’s white male population of military
14. Yoo, Unitary, Executive, or Both?, supra note 11, at 2004. But cf. U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 846–47 n.1 (1995) (Thomas, J., dissenting) (“In the [original]
Constitution . . . ‘the United States’ is consistently a plural noun.” (citing U.S. CONST. art. I, § 9, cl. 8;
art. II, § 1, cl. 7; art. III, § 2, cl. 1; art. III, § 3, cl. 1)).
15. U.S. CONST. amend. XIV, § 1.
16. U.S. CONST. amend. XV, § 1.
17. U.S. CONST. amend. XIV, § 1.
18. Letter from Abraham Lincoln to Albert G. Hodges (Apr. 4, 1864), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 585, 586. There are a large number of sources on Lincoln; he is
reportedly the subject of the most books in the English language after Jesus and Shakespeare. John Yoo,
Of Merryman and Milligan (and McCardle), 34 J. SUPREME CT. HIST. 243, 243 (2009) [hereinafter Yoo,
Merryman & Milligan]. Yet, there are relatively few books on Lincoln’s performance of his role as
President and Commander-in-Chief. I have relied in this essay on a few outstanding works: DAVID
HERBERT DONALD, LINCOLN (1995); DANIEL FARBER, LINCOLN’S CONSTITUTION (2003); HAROLD M.
HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE
CONSTITUTION (1975); JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA
(1988); MARK NEELY, THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (1991);
PALUDAN, supra note 1; and J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN (rev. ed.,
1951). There are also a number of important articles on Lincoln’s exercise of his constitutional powers,
and whether they amounted to a dictatorship. In the chapters of the books on the Presidency that discuss
Lincoln in detail, political scientists generally argue that Lincoln exercised powers approaching a
dictatorship. Historians, on the other hand, seem to conclude that Lincoln’s policies rested within his
executive powers, broadly construed. See generally HERMAN BELZ, LINCOLN AND THE CONSTITUTION:
THE DICTATORSHIP QUESTION RECONSIDERED 1 (1984); Michael Les Benedict, The Constitution of the
Lincoln Presidency and the Republican Era, in THE CONSTITUTION AND THE AMERICAN PRESIDENCY
45, 47–48 (Martin L. Fausold & Alan Shank eds., 1991); DAVID DONALD, LINCOLN RECONSIDERED:
ESSAYS ON THE CIVIL WAR ERA 187 (2d ed. 1972) [hereinafter DONALD, LINCOLN RECONSIDERED];
and DON E. FEHRENBACHER, Lincoln and the Constitution, in LINCOLN IN TEXT AND CONTEXT:
COLLECTED ESSAYS 113, 119–22 (1987).
19. Yoo, Unitary, Executive, or Both?, supra note 11, at 2004 (citing FARBER, supra note 18,
at 92–114).
20. C. Vann Woodward, Introduction to MCPHERSON, supra note 18, at xix.
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age were killed.21 While the total value of Northern wealth rose 50% during
the 1860s, Southern wealth declined by 60%.22
The human cost weighed heavily upon Lincoln, but he believed it was
necessary to atone for the wrong of slavery. “Fondly do we hope, fervently
do we pray, that this mighty scourge of war may speedily pass away,”
Lincoln wrote in his Second Inaugural Address.23 “Yet, if God wills that it
continue until all the wealth piled by the bondsman’s two hundred and fifty
years of unrequited toil shall be sunk, and until every drop of blood drawn
with the lash shall be paid by another drawn with the sword,” he continued,
“as was said three thousand years ago, so still it must be said ‘the judgments
of the Lord are true and righteous altogether.’”24 One of the lives lost would
be Lincoln’s—the first President to be assassinated.
Lincoln’s greatness is inextricably linked to his broad vision of
presidential power. He invoked his authority as Commander-in-Chief and
Chief Executive to conduct war, initially without congressional permission,
when many were unsure whether secession meant war. 25 He considered the
entire South the field of battle, and read his powers to attack anything that
helped the Confederate war effort.26 While he depended on congressional
support for the men and material to win the conflict, Lincoln made critical
decisions on tactics, strategy, and policy without input from the
Legislature.27 The most controversial was the Emancipation Proclamation.28
Only Lincoln’s broad interpretation of his Commander-in-Chief authority
made that sweeping step of freeing the slaves possible.29
Some have argued that part of Lincoln’s tragedy is that he had to
exercise unconstitutional powers in order to save the Union. In their classic
21. Maris Vinovskis, Have Social Historians Lost the Civil War? Some Preliminary
Demographic Speculations, in TOWARD A SOCIAL HISTORY OF THE AMERICAN CIVIL WAR:
EXPLORATORY ESSAYS 1, 7 (1990) (18% of southern white males aged 13 to 43 died in the Civil War).
Data on injured soldiers is considerably less reliable than data on deaths. Id. at 7 n.8.
22. Yoo, Unitary, Executive, or Both?, supra note 11, at 2004–05. Those deaths had a much
greater impact than other wars, such as World Wars I and II, because the casualties represented a much
larger share of the nation’s smaller population in 1861 than more recent conflicts.
23. Abraham Lincoln, Second Inaugural Address (Mar. 4, 1865), in 6 Richardson, supra note
13, at 276, 277.
24. Id.
25. See MCPHERSON, supra note 18, at 274–75 (providing additional details about Lincoln’s
call to arms). Compare infra Part I.A (describing Buchanan’s belief that the Constitution prevented him
from acting against secession), with infra Part II.B (discussing Lincoln’s view that the Constitution
empowered him to address secession and chronicling Lincoln’s call to arms following the attack on Fort
Sumter).
26. See infra notes 219–35 and accompanying text.
27. See infra Part I.E.
28. See infra Part I.F.
29. See infra Part I.F.
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studies of the Presidency, Arthur M. Schlesinger called Lincoln a “despot,”
and both Edward Corwin and Clinton Rossiter considered Lincoln to have
assumed a “dictatorship.”30 These views echo arguments made during the
Civil War itself, even by Republicans who believed that the Constitution
could not address such an unprecedented conflict.31 Lincoln surely claimed
that he could draw on power beyond the Constitution in order to preserve
the nation. As he wrote to a Kentucky newspaper editor in 1864, “Was it
possible to lose the nation, and yet preserve the constitution?”32 To Lincoln,
common sense supplied the answer: “By general law life and limb must be
protected; yet often a limb must be amputated to save a life; but a life is
never wisely given to save a limb.”33 Lincoln believed necessity could
justify unconstitutional acts: “I felt that measures, otherwise
unconstitutional, might become lawful, by becoming indispensable to the
preservation of the constitution, through the preservation of the nation.”34
Lincoln, however, was no dictator. While he used his powers more
broadly than any previous President, he was responding to a crisis that
threatened the very life of the nation.35 He flirted with the idea of a Lockean
prerogative,36 but his actions drew upon the same mix of executive
authorities that had supported Washington, Jefferson, and Jackson.37 He
relied on his power as Commander-in-Chief to give him control over
decisions ranging from tactics and strategy to reconstruction policy.38 Like
his predecessors, Lincoln interpreted his constitutional duty to execute the
laws, his role as Chief Executive, and his presidential oath as grants of
power to use force, if necessary, against those who opposed the authority of
30. See, e.g., EDWARD S. CORWIN ET AL., THE PRESIDENT: OFFICE AND POWERS, 1787–1984,
at 20, 23–24 (5th rev. ed. 1984); CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS
GOVERNMENT IN THE MODERN DEMOCRACIES 224 (2002); ARTHUR M. SCHLESINGER, JR., THE
IMPERIAL PRESIDENCY 59 (1973).
31. See infra notes 314–20 and accompanying text.
32. Letter from Abraham Lincoln to Albert G. Hodges, supra note 18, at 585.
33. Id. (emphasis in original).
34. Id.
35. Letter from Abraham Lincoln to Erastus Corning and Others (June 12, 1863), in LINCOLN,
SPEECHES AND WRITINGS, supra note 1, at 454, 459.
36. See CORWIN ET AL., supra note 30, at 7–8, 23–24 (discussing the Lockean prerogative and
Lincoln’s actions as President); FARBER, supra note 18, at 128 (“Locke is often cited as support for th[e]
doctrine [that the president has extraconstitutional powers] because he argued that the executive had
inherent power to take steps to preserve society.”); ROSSITER, supra note 30, at 224 (suggesting Lincoln
may have reasoned that “[i]f the Union and the Government cannot be saved out of this terrible shock of
war constitutionally, a Union and a Government must be saved unconstitutionally.” (quoting S.G.
FISHER: THE TRIAL OF THE CONSTITUTION 199 (1862)) (internal quotation marks omitted)).
37. Yoo, Unitary, Executive, or Both?, supra note 11, at 2006.
38. See infra Part I.E.
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the United States.39 Lincoln wrote: “[M]y oath to preserve the constitution
to the best of my ability, imposed upon me the duty of preserving, by every
indispensable means, that government—that nation—of which that
constitution was the organic law.”40 It seems clear that Lincoln believed that
the Constitution vested him with sufficient authority to handle secession
and civil war without the need to resort to Jefferson’s prerogative.
Lincoln refused to believe that the Constitution withheld the power for
its own self-preservation. Rather than seek a greater power outside the law
to protect the nation, he found it in the Chief Executive Clause. That gave
Lincoln the authority to decide that secession justified military coercion,
and the wide range of measures he took in response: raising an army,
invasion and blockade of the South, military government of captured
territory, suspension of the writ of habeas corpus, and tough internal
security measures.41 Lincoln consistently maintained that he had not sought
the prerogative, but that the Constitution gave him unique war powers to
respond to the threat to the nation’s security.42 Lincoln’s political rhetoric
invoked Jefferson, but his constitutional logic followed Hamilton.43
Perhaps the most important defense to the charge of dictatorship is that
the normal political process operated in the North throughout the War. An
opposition party continued to challenge Lincoln’s wartime policies, and
regular elections were held in the state and national governments,44 with the
crucial 1864 election giving voters a choice between more of Lincoln’s war
or a cessation of hostilities.45 While the administration took vigorous,
sometimes extreme, steps to prevent assistance to the Confederacy from
behind the lines, the administration refused to interfere with the normal
workings of politics at home.46 Full-throated competition for elections and
debate over the War continued between Republicans and Democrats, to the
39. See infra Part I.B.
40. Letter from Lincoln to Albert G. Hodges, supra note 18, at 585.
41. See infra Part I.B.
42. Yoo, Unitary, Executive, or Both?, supra note 11, at 2007 (citing FARBER, supra note 18,
at 193–94).
43. Id.
44. See ALLAN NEVINS, ORDEAL OF THE UNION: WAR BECOMES REVOLUTION, 1862–1863, at
169 (1960); Jamie L. Carson et al., The Impact of National Tides and District-Level Effects on Electoral
Outcomes: The U.S. Congressional Elections of 1862–63, 45 AM. J. POL. SCI. 887, 893–94 (2001)
(analyzing the results of congressional elections during the Civil War).
45. See PALUDAN, supra note 1, at 279, 283 (explaining the competing political goals of the
two parties: Lincoln would continue the war while the opposing party, led by Gen. George McClellan,
would end the war).
46. Id. at 275–76, 283 (examining how Louisiana shows Lincoln’s reluctance to interfere with
state politics for fear that it would lead to division within the Republican party).
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point where Lincoln worried that he would have to hand over the
Presidency to his opponent, retired General George McClellan.47
Throughout the War, the institutions of government kept their
characteristic features. Congress controlled the power of the purse and
initiated most domestic policies, such as the Homestead Act, a protective
tariff, land grant colleges, and subsidies for railroad construction.48 Lincoln
followed a hands-off approach on domestic priorities and disclaimed any
right to veto laws because of disagreements on policy.49 He rarely interfered
with legislation,50 often consulted with members of Congress in making
important appointments,51 and displayed little interest in the work of
agencies with domestic responsibilities.52 He was profoundly aware that
members of Congress and his cabinet enjoyed many more years of public
service and experience than he.53 Initially, he spoke in the language of
deference to Congress and sought its ex post approval of his actions at the
start of the War.54
Nonetheless, Lincoln was not reluctant to disturb relations with the
other branches of government in pursuit of his war aims. From the very
beginning, he had set the stage to make it difficult, if not impossible, for
Congress to reverse his initial military decisions.55 He excluded Congress
from important war policies56 and vetoed early congressional efforts to
dictate the course of Reconstruction.57 But Lincoln could not rule out all
congressional participation in the War. Congress’s cooperation was critical
to any sustained war effort, for it alone controlled taxing and spending, the
size and shape of the military, economic mobilization, and the regulation of
domestic society.58 Lincoln did not refuse to obey any congressional laws,
but he maintained his independent right to act in areas of executive
competence, such as the management of the War, and to act concurrently
with Congress in areas that might usually be thought to rest within the
47. Id. at 284.
48. Homestead Act of 1862, ch. 75, § 1, 12 Stat. 392; Morrill Land Grant Colleges Act,
ch. 130, 12 Stat. 503 (1862); Pacific Railway Act, ch. 120, 12 Stat. 489 (1862).
49. See DONALD, LINCOLN RECONSIDERED, supra note 18, at 192–93.
50. Id. at 191.
51. Id. at 191–92.
52. Id. at 193–94.
53. Yoo, Unitary, Executive, or Both?, supra note 11, at 2010.
54. Lincoln, Special Message to Congress, supra note 2, at 252–53.
55. See infra Part I.B.
56. Yoo, Unitary, Executive, or Both?, supra note 11, at 2010.
57. See infra notes 397–401, 421–28 and accompanying text.
58. See generally JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND
FOREIGN AFFAIRS AFTER 9/11, at 13, 22 (2005).
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legislature’s purview.59 Lincoln, not Congress, decided the goals of the
War, the terms of the peace, and the means to win both.60
Lincoln’s attitude toward the judiciary is even more at odds with
today’s conventional wisdom. He lost confidence in the courts after Dred
Scott v. Sanford, which recognized slave ownership as a property right and
made it unconstitutional for Congress to restrict slavery’s spread in the
territories.61 Challenging the legitimacy of Dred Scott defined the young
Republican Party. In his famous, losing debates with Stephen Douglas,
Lincoln rose to national prominence by arguing that Dred Scott applied
only to the parties in the case.62 In other words, the Supreme Court’s
decisions could not bind the President or Congress, who had the right to
interpret the Constitution too, or, most importantly, the people.63 “[N]or do
I deny that such decisions must be binding in any case, upon the parties to a
suit, as to the object of that suit,” Lincoln explained in his First Inaugural
Address.64 Decisions of the Court should receive “very high respect and
consideration, in all paral[l]el cases, by all other departments of the
government.”65 It might even be worth following erroneous decisions at
times because the costs of reversing them might be high.66 But “if the policy
of the government, upon vital questions, affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court,” Lincoln argued, “the
people will have ceased, to be their own rulers, having, to that extent,
practically resigned their government, into the hands of that eminent
tribunal.”67
Lincoln laid the foundations of his Presidency on a vigorous and
dynamic view of his right to advance an alternative vision of the
Constitution. If Lincoln and the Republican Party had accepted the
supremacy of the judiciary’s interpretation of the Constitution, Dred Scott
would have foreclosed their core position that the federal government
should stop the spread of slavery. Likewise, Lincoln’s Presidency could not
have achieved its successes without a proactive exercise of his
59. See infra Part I.B.
60. Yoo, Unitary, Executive, or Both?, supra note 11, at 2010.
61. Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 393–94 (1856), superseded by constitutional
amendment, U.S. CONST. amend. XIII, § 2.
62. Abraham Lincoln, First Debate with Stephen A. Douglas at Ottawa, Illinois (August 21,
1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 1, 16, 29 (Roy P. Basler ed., 1953)
(hereinafter COLLECTED WORKS).
63. Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in LINCOLN, SPEECHES AND
WRITINGS, supra note 1, at 215, 221.
64. Id.
65. Id.
66. Id.
67. Id.
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constitutional powers. A passive attitude that conceded to Congress the
leading role in setting policy, or one that waited on the Supreme Court to
decide matters, would have led to a sundered nation or military disaster.
Lincoln became America’s savior because he preserved the Union, freed the
slaves, and launched a new birth of freedom. He set in motion a political,
social, and economic revolution, but one that had the conservative goal of
restoring the nation’s constitutional system of government. He could have
achieved none of this without a broad vision of his office.
I. WAGING WAR
One of Lincoln’s most remarkable exercises of presidential authority
often goes unremarked. His decision that secession was unconstitutional
and that the Union could oppose it by force was fundamental to the
beginning of the Civil War.68 Today, most accept Lincoln’s view, but they
forget that the Constitution does not explicitly address the question, nor
does it spell out who has the right to decide it.69 In today’s environment of
judicial supremacy, we have grown accustomed to the idea that
constitutional questions are for the Supreme Court to decide.70 The Court,
however, would not reach the question of secession until the Civil War had
ended.71
A. James Buchanan’s Trepidations: The Constitution as a Restraint
One need only contrast Lincoln’s approach to that of his predecessor,
James Buchanan, usually thought to be the nation’s worst President. The
South had ensured Lincoln’s election by walking out of the Democratic
convention and nominating its own candidate for the Presidency, sitting
Vice President John Breckinridge.72 Senator Douglas, who became the
nominee of the Democratic Party in the North, took the position that the
68. FARBER, supra note 18, at 19; see infra I.B.
69. Yoo, Unitary, Executive, or Both?, supra note 11, at 2007.
70. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2688 (2013) (stressing “the Supreme
Court's primary role in determining the constitutionality of a law” and suggesting that the executive
should not be allowed to “nullify” a statute “on its own initiative and without any determination from
the Court”).
71. See Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869) (“The Constitution, in all its
provisions, looks to an indestructible Union, composed of indestructible States.”), overruled in part by,
Morgan v. United States, 113 U.S. 476 (1885); see also id. at 726 (finding Texas’s secession ordinance
invalid, and inferring that Texas remained a state in the Union despite the ordinance).
72. See DANIEL CARROLL TOOMEY, THE CIVIL WAR IN MARYLAND 6–7 (1983) (noting that
the Democratic Party was “shattered” when delegates left the convention in Charleston and nominated
Vice President John Breckinridge in a separate convention).
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people of each territory should decide the slavery question for themselves—
the doctrine of popular sovereignty.73 This was not good enough for
Southern Democrats, who wanted Congress to enact a code making slavery
sacrosanct throughout the territories.74 When it became clear that Lincoln
had won, South Carolina led the Deep South toward secession.75
Buchanan believed that secession was illegal but that he lacked the
constitutional authority to stop it. In the waning days of his administration,
his Attorney General concluded that the Executive only had authority to
defend federal property, and that he could not call in the militia to enforce
federal law because no federal law enforcement officials remained in the
South.76 The Constitution gave neither the President nor Congress, the
Attorney General’s opinion reasoned, the power to “make war” against the
seceding states to restore the Union.77 In his December 1860 annual
message to Congress, Buchanan blamed the crisis on Northern agitation to
overturn slavery.78 Even though the South could not secede, he could not
“make war against a State,” leaving the federal government powerless.79
After the rest of the Deep South seceded and formed the Confederate States
of America, Buchanan again declared that the executive power did not
include the use of force against a state, and humbly requested that
Congress, “the only human tribunal under Providence possessing the power
to meet the existing emergency,” do something.80 Buchanan’s narrow
understanding of the constitutional powers of the office meant that the
federal government was helpless before the greatest threat to the nation in
its history.
73. ROBERT W. JOHANNSEN, THE FRONTIER, THE UNION, AND STEPHEN A. DOUGLAS 96
(1989).
74. See FARBER, supra note 18, at 12; see also MCPHERSON, supra note 18, at 252–53
(describing the push for a constitutional amendment that would prevent the federal government from
interfering with slavery).
75. EMORY M. THOMAS, THE CONFEDERATE NATION: 1861–1865, at 45 (1979).
76. Power of the President in Executing the Laws, 9 Op. Att’y Gen. 516, 523 (1860); see also
FARBER, supra note 18, at 75–76 (describing the influence of the Attorney General’s advice).
77. Power of the President, 9 Op. Att’y Gen. at 524; see also FARBER, supra note 18, at 75–76
(describing the Attorney General’s rationale).
78. James Buchanan, Fourth Annual Message (Dec. 3, 1860), in 5 Richardson, supra note 13,
at 626, 626; see also FARBER, supra note 18, at 76 (quoting Buchanan’s speech).
79. James Buchanan, Fourth Annual Message, supra note 78, at 636; see also FARBER, supra
note 18, at 76 (explaining Buchanan’s position).
80. James Buchanan, Special Message to Congress (Jan. 8, 1861), in 5 Richardson, supra note
13, at 654, 656.
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B. Lincoln’s Decisiveness: The Constitution as a Source of Power
Lincoln understood that the Constitution empowered him to do much
more than issue a polite invitation that the South return home. The
Confederacy made his case easier by seizing federal property and attacking
Fort Sumter first.81 He had no need to address Calhoun’s nullification
arguments, or even those of Jefferson and Madison against the Alien and
Sedition Acts that states had a right to resist obviously unconstitutional
actions by the federal government.82 The Confederate States were
frustrating the constitutional system and denying the results of nationwide
democratic elections.83 They had seceded from a national government that
had yet to pass any law prohibiting slavery in the territories or the South
itself. In his First Inaugural Address, Lincoln promised not to interfere with
the bargain reached in the Constitution that the Southern states could decide
on slavery as a matter of their own “domestic institutions.”84 He construed
his constitutional duty to require enforcement of the Fugitive Slave Clause
and to refrain from any interference “with the institution of slavery in the
States where it exists.”85
Secession, however, was an unconstitutional response to his election by
the democratic process. Echoing Jackson, Lincoln declared that the Union,
as a nation, was perpetual.86 It preexisted the Constitution; it preexisted the
Articles of Confederation.87 Even the Constitution recognized this fact by
providing, in its Preamble, for a more perfect Union.88 Because secession
was illegal, Lincoln reasoned, the Southern states were still part of the
nation, and “the Union [wa]s unbroken.”89
81. See BERN ANDERSON, BY SEA AND BY RIVER: THE NAVAL HISTORY OF THE CIVIL WAR 18
(1962) (“As each Southern state seceded from the Union it seized the Federal Ships and buildings within
its limits.”); id. at 20 (noting that the bombardment on Fort Sumter began before the Union resupplied
it); see also infra notes 95–100 and accompanying text.
82. THOMAS JEFFERSON, KENTUCKY RESOLUTIONS (1798-1799), reprinted in 5 THE
FOUNDERS' CONSTITUTION 131, 131–35 (Phillip B. Kurland & Ralph Lerner eds., 1987); JAMES
MADISON, VIRGINIA RESOLUTIONS AGAINST THE ALIEN AND SEDITION ACTS (1798), reprinted in 5 THE
FOUNDERS’ CONSTITUTION, supra, at 135, 135–36; see James H. Read, Madison’s Response to
Nullification, in JAMES MADISON: PHILOSOPHER, FOUNDER, AND STATESMAN 269, 270 (John R. Vile,
William D. Pederson, and Frank J. Williams eds., 2008) (describing Calhoun’s argument).
83. See Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in
COLLECTED WORKS, supra note 62, at 439 (arguing that the election was “fairly, and constitutionally,
decided” and that the rebels wrongly used “bullets” to attempt to overcome the result).
84. Lincoln, First Inaugural Address, supra note 63, at 215.
85. Id.
86. Id. at 217–18.
87. Id.
88. Id. at 218.
89. Id.
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Resistance to federal law and institutions was the work not of the states
themselves, but a conspiracy of rebels who were illegally obstructing the
normal operations of the national government.90 The Constitution called
upon Lincoln to use force, if necessary, against these rebels in order to see
“that the laws of the Union be faithfully executed in all the States.”91
Though on a much greater scale, the Civil War triggered the same
presidential power invoked by Washington during the Whiskey Rebellion
and Jefferson during the Embargo.92 Lincoln did not believe he had any
choice; the Constitution required him to put down the rebellion.93 “You
have no oath registered in Heaven to destroy the government,” Lincoln told
the South, “while I shall have the most solemn one to ‘preserve, protect and
defend’ it.”94
Where Buchanan and previous Presidents found only constitutional
weakness, Lincoln discovered constitutional strength. He patiently
maneuvered circumstances so that Jefferson Davis’s troops would fire the
first shot.95 Federal officials who sympathized with the Confederacy handed
over armories, treasuries, and property, but federal installations in several
ports remained in Union hands.96 Fort Sumter in Charleston Harbor held
symbolic importance as a flashpoint again, just as it did during the
nullification crisis.97
On April 4, 1861, exactly one month into his term, Lincoln ordered the
navy to resupply the Union fort and to use force only if fired upon.98
Jefferson Davis ordered bombing to begin before the ships could arrive, and
Union forces surrendered on April 14.99 Lincoln did not consult Congress,
90. See id. (“[A]cts of violence, within any State or States, against the authority of the United
States, are insurrectionary or revolutionary . . . .”); see also id. at 219 (referring to “persons in one
section, or another who seek to destroy the Union” (emphasis added)).
91. Id. at 218.
92. See John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421, 450–51 (2008) (noting
that both Washington and Jefferson used military force to suppress insurrections during the Whiskey
Rebellion and the Embargo respectively).
93. Lincoln, First Inaugural Address, supra note 63, at 224; see also Michael Stokes Paulsen,
The Civil War as Constitutional Interpretation, 71 U. CHI. L. REV. 691, 706–07 (2004) (book review)
(explaining Lincoln’s belief in a duty to defeat secession).
94. Lincoln, First Inaugural Address, supra note 63, at 224 (emphasis omitted).
95. MCPHERSON, supra note 18, at 271–72.
96. See id. at 262–63 (Southern states seized federal property but the Union maintained control
of a small number of coastal forts, including Fort Sumter).
97. WILLIAM W. FREEHLING, PRELUDE TO CIVIL WAR: THE NULLIFICATION CONTROVERSY IN
SOUTH CAROLINA, 1816–1836, at 323, 359 (1965).
98. MCPHERSON, supra note 18, at 271.
99. Stephen Vladeck, The Field Theory: Martial Law, The Suspension Power, and the
Insurrection Act, 80 TEMP. L. REV. 391, 398 (2007); FARBER, supra note 18, at 7.
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which was not in session, nor did he call Congress into session,100 as he
could “on extraordinary Occasions” under the Constitution.101 He did not
launch offensive operations against the South, but he placed American
forces in harm’s way, which carried a strong risk of starting a war between
the states.
The North was woefully unprepared. Its small army was deployed
primarily along the western frontiers; its navy had only a few warships
ready for action in American waters.102 After the fall of Fort Sumter,
Lincoln sprung to action. On April 15, he declared a state of rebellion and
called forth 75,000 state troops under the Militia Act.103 He proclaimed that
groups in the South were obstructing the execution of federal law beyond
the ability of courts and federal officials to overcome.104
Lincoln’s proclamation prompted the upper Southern states to secede,
led by Virginia.105 The President issued a call for volunteers, increased the
size of the regular army, and ordered the navy to enlist more sailors and
purchase additional warships.106 He also removed millions from the
Treasury for military recruitment and pay.107 Article I, Section 8 of the
Constitution expressly vests in Congress the power to raise an army and
navy and to fund them; the President has no authority to exercise either
power.108
Lincoln put the army and navy to immediate use. He ordered a
blockade of Southern ports and dispatched troops against rebel-held
territory.109 Lincoln called Congress into special session but, significantly,
not until July 4.110 While of obvious symbolic importance, the July 4 date
ensured that the executive branch, not Congress, would set initial war
policy.111 Lincoln had three months to establish a status quo that would be
difficult for Congress to change.112 This was remarkable leadership for a
President who had been the underdog to win his party’s nomination, who
100.
101.
102.
103.
FARBER, supra note 18, at 7.
U.S. CONST. art. II, § 3.
MCPHERSON, supra note 18, at 313.
Abraham Lincoln, Proclamation Calling Militia and Convening Congress (April 15, 1861),
in 4 COLLECTED WORKS, supra note 62, at 331, 331–32.
104. Id.
105. FREEHLING, supra note 97, at 503.
106. Abraham Lincoln, Proclamation Calling for 42,034 Volunteers (May 3, 1861), in 4
COLLECTED WORKS, supra note 62, at 353, 353–54.
107. FARBER, supra note 18, at 117–18.
108. U.S. CONST. art. I, § 8.
109. ANDERSON, supra note 81, at 288.
110. Abraham Lincoln, Special Session Message (July 4, 1861), in 6 Richardson, supra note 13,
at 20.
111. Yoo, Unitary, Executive, or Both?, supra note 11, at 2010.
112. Id.
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had not won a majority of the popular vote, whose cabinet was filled with
men with far more distinguished records of public service, and who did not
have close relationships with the congressional leaders of his party.113
Rapid events forced Lincoln to exercise broad authorities on defense as
well as offense. Maryland was a slave-holding state, and the state
legislature was pro-Confederacy.114 If it seceded, the nation’s capital would
be utterly isolated.115 Mobs in Baltimore attacked the first military units
from Massachusetts and Pennsylvania to reinforce the capital, and rebel
sympathizers cut the telegraph and railroad lines to Washington.116
C. Ex Parte Merryman: Executive Suspension of the Writ of Habeas
Corpus
Lincoln interpreted his constitutional powers to give him the initiative
in responding to the emergency. On April 27, 1861, he unilaterally
suspended the writ of habeas corpus on the route from Philadelphia to
Washington and replaced civilian law enforcement with military detention
without trial.117 Suspension prevented rebel spies and operatives detained
by the military from petitioning the civilian courts for release.118 The
Constitution surely describes this power in the passive tense: “The privilege
of the Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.”119 But it is
located in Article I, which enumerates Congress’s powers and its limits.120
But Congress would not meet until July 4. Had Lincoln seized the powers
of another branch?
A case presented Chief Justice Roger Taney, Jackson’s Attorney
General and author of Dred Scott, with the perfect opportunity to answer
this question. Union officers arrested John Merryman, an officer in a
secessionist Maryland militia, for participating in the destruction of the
113. Id.
114. FARBER, supra note 18, at 16.
115. Yoo, Unitary, Executive, or Both?, supra note 11, at 2010 (citing FARBER, supra note 18,
at 16).
116. MATTHEW PAGE ANDREWS, HISTORY OF MARYLAND 514–15, 517 (1929); FARBER, supra
note 18, at 16, 117.
117. Letter from Abraham Lincoln to Winfield Scott (Apr. 27, 1861), in 4 COLLECTED WORKS,
supra note 62, at 347, 347.
118. Yoo, Unitary, Executive, or Both?, supra note 11, at 2010 (citing PALUDAN, supra note 1,
at 73–75).
119. U.S. CONST. art. I, § 9, cl. 2.
120. See id. art I, §§ 8–9 (describing the powers and limits of Congress); see also Ex parte
Merryman, 17 F. Cas. 144, 148 (C.C.D. Md. 1861) (noting that the Suspension Clause is located in
Article I, along with other legislative powers).
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railroads near Baltimore.121 Upon the petition of Merryman’s lawyer, Taney
issued a writ of habeas corpus ordering the commander of Union forces in
Maryland to produce Merryman in court.122 The general refused to appear
and instead sent an aide to notify Taney that Merryman had been detained
under the President’s suspension of habeas corpus.123 Taney held the
general in contempt, but the marshal serving the order could not gain entry
to Fort McHenry.124
Taney was left to issue an opinion, which sought to pull the heart out of
Lincoln’s energetic response to secession.125 He held in Ex Parte Merryman
that the Suspension Clause’s placement in Article I, and judicial
commentary since ratification, recognized that only Congress could suspend
the writ.126 If military detention without trial were permitted to continue,
Taney wrote, “the people of the United States are no longer living under a
government of laws.”127 Under presidential suspension, “every citizen holds
life, liberty and property at the will and pleasure of the army officer in
whose military district he may happen to be found.”128 Taney’s opinion
clearly questioned the legal basis for Lincoln’s other responses to
secession.129 Beyond suspending habeas corpus, he wrote, the Lincoln
administration “has, by force of arms, thrust aside the judicial authorities
and officers to whom the constitution has confided the power and duty of
interpreting and administering the laws, and substituted a military
government in its place, to be administered and executed by military
officers.”130
Merryman was not just an attack on Lincoln’s suspension of the writ,
but upon the President’s right to interpret the Constitution. Taney declared
that it was the responsibility of “that high officer, in fulfillment of his
constitutional obligation” under the Take Care Clause to enforce the court’s
orders.131 It was another declaration of judicial supremacy in interpreting
121. FARBER, supra note 18, at 17; TOOMEY, supra note 72 at 21.
122. There is some dispute as to whether Taney was sitting as a judge on circuit or as a Supreme
Court Justice in chambers at the time. For a more detailed discussion of the Merryman case, see Yoo,
Merryman & Milligan, supra note 18. The facts of the case are described in Merryman, 17 F. Cas. at
147. See also Arthur T. Downey, The Conflict Between the Chief Justice and the Chief Executive: Ex
Parte Merryman, 31 J. SUP. CT. HIST. 262, 263 (2006).
123. Downey, supra note 122, at 264–65.
124. Id. at 265, 268.
125. Yoo, Merryman & Milligan, supra note 18, at 247.
126. Merryman, 17 F. Cas. at 148, 151; see also Downey, supra note 122, at 269–70.
127. Merryman, 17 F. Cas. at 152.
128. Id.
129. Id.
130. Id.
131. Id. (citing U.S. CONST. art. II, § 3).
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the Constitution—to be expected of the Justice who had written Dred Scott,
though perhaps not from Jackson’s Attorney General. Taney wanted to
dramatize the conflict between the President and the judiciary. He appeared
before a crowd of 2,000 on the Baltimore courthouse steps to receive the
commanding general’s response, and declared that the officer was defying
the law and that even the Chief Justice might soon be under military
arrest.132
Lincoln answered Taney, and the widespread claims of executive
dictatorship, in his message to the July 4 session of Congress. Lincoln
stressed that the Confederacy had fired the first shot before the national
government had taken any action that might threaten slavery.133 Secession
attacked only the process of “time, discussion, and the ballot-box.”134 In
response, “no choice was left but to call out the war power of the
Government; and so to resist force, employed for its destruction, by force,
for its preservation.”135 He recited the litany of actions that followed:
calling out the militia, the blockade, the call for volunteers, and the
expansion of military spending.136 Lincoln claimed that he had moved
forcefully with the support of public opinion.137 “These measures, whether
strictly legal or not, were ventured upon, under what appeared to be a
popular demand, and a public necessity; trusting, then as now, that
Congress would readily ratify them.”138
Lincoln avoided the question of whether he had acted
unconstitutionally. He sought justification from Congress’s political
support, after the fact.139 “It is believed that nothing has been done beyond
the constitutional competency of Congress.”140 Congress enacted a statute
that did not explicitly authorize war against the South, but declared that
Lincoln’s actions “respecting the army and navy of the United States, and
calling out or relating to the militia or volunteers from the States, are hereby
approved and in all respects legalized and made valid . . . as if they had
been issued and done” by Congress.141 Congress gave approval through its
132. PALUDAN, supra note 1, at 76.
133. Lincoln, Message to Congress in Special Session, supra note 83, at 421, 425; see also
Lincoln, First Inaugural Address, supra note 63, at 220–23.
134. Lincoln, Message to Congress in Special Session, supra note 83, at 423, 425.
135. Id. at 426.
136. Id. at 428–29.
137. Id. at 429.
138. Id.
139. Id.
140. Id.
141. Act of Aug. 6, 1861, ch. 63, 12 Stat. 326 (legalizing acts, proclamations, and orders of the
president).
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explicit control over the size and funding of the military, but did not seek to
direct Lincoln’s war aims or the conduct of hostilities.
D. The Prize Cases: The Power and Obligation of the Executive to Resist
Insurrection
It would be a year and a half before the Supreme Court considered the
constitutionality of Lincoln’s immediate actions. The Prize Cases presented
a demand for damages by the owners of several vessels seized by the Union
blockade in the summer of 1861.142 The owners argued that international
law limited blockades only to wars between nations.143 Thus, international
law conflicted directly with Lincoln’s theory that the Confederacy was only
a conspiracy of law-breakers. If the Civil War were a war, the plaintiffs
continued, Lincoln could not act without a declaration of war from
Congress first.144
A 5–4 majority of the Court upheld Lincoln’s actions, with or without
congressional authorization.145 It began by endorsing Lincoln’s initial
judgment that secession had begun an insurrection, not a war with a
separate nation.146 They also agreed that the scope of the insurrection
nevertheless granted the United States the rights and powers of war against
a belligerent nation: “[I]t is not necessary to constitute war, that both parties
should be acknowledged as independent nations or sovereign States. A war
may exist where one of the belligerents, claims sovereign rights as against
the other.”147 Even though the South would never be recognized as a nation
by the United States, the very nature of the conflict required that it be
recognized as war, rather than as a matter for the criminal justice system.148
“When the party in rebellion occupy and hold in a hostile manner a certain
portion of territory; have declared their independence; have cast off their
allegiance; have organized armies; have commenced hostilities against their
former sovereign, the world acknowledges them as belligerents, and the
contest a war.”149 Lincoln’s blockade of Southern ports, though legal under
international law only against another nation, was a legitimate exercise of
war power under the Constitution.
142. See The Prize Cases, 67 U.S. (2 Black) 635, 636–37 (1862) (describing owner’s appeal of
condemnation against their vessels).
143. Id. at 642–43, 649.
144. Id. at 688–90.
145. Id. at 668.
146. Id. at 641–42.
147. Id. at 666.
148. Id.
149. Id. at 666–67.
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The Court found that Lincoln did not need a declaration of war to
respond to the attack on Fort Sumter. “If a war be made by invasion of a
foreign nation, the President is not only authorized but bound to resist force
by force. He does not initiate the war, but is bound to accept the challenge
without waiting for any special legislative authority.”150 It did not matter
whether the attacker was a foreign nation or a seceding state: The firing on
Fort Sumter constituted an act of war against which the President
automatically had authority to use force.151 “And whether the hostile party
be a foreign invader, or States organized in rebellion, it is none the less a
war, although the declaration of it be ‘unilateral.’”152 The Court expressly
declared that the scope and nature of the military response rested within the
hands of the Executive. “Whether the President in fulfilling his duties, as
Commander-in-chief, in suppressing an insurrection, has met with such
armed hostile resistance, and a civil war of such alarming proportions as
will compel him to accord to them the character of belligerents, is a
question to be decided by him . . . .”153
Judicial review would not extend to the President’s decisions on
whether to consider the Civil War a war, and what type of military response
to undertake. Justice Grier wrote for the majority, “[T]his Court must be
governed by the decisions and acts of the political department of the
Government to which this power was entrusted.”154 The Justices only
entertained the need for legislative approval as a hypothetical to buttress
their conclusion, and never held that Congress’s approval was necessary as
a constitutional matter.
If it were necessary to the technical existence of a war, that it
should have a legislative sanction, we find it in almost every act
passed at the extraordinary session of the Legislature of 1861,
which was wholly employed in enacting laws to enable the
Government to prosecute the war with vigor and efficiency.155
Both the courts and Congress vindicated Lincoln’s constitutional position
from the early days of the war.
150.
151.
152.
153.
154.
155.
Id. at 668.
Id.
Id.
Id. at 670 (emphasis in original).
Id.
Id.
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E. Lincoln’s Initiative: Military Strategy from the President’s Desk
We tend to focus on these early presidential acts because they raise
questions of the gravest moment—presidential power to act even in areas of
clear congressional authority during emergency. What is sometimes
forgotten is how quickly Lincoln took direction of the Union’s response. In
addition to deciding the fundamental question that secession was illegal,156
Lincoln managed the events following his election to put the South in a
difficult position. In his First Inaugural Address, he announced that the
Union would keep all federal installations and bases, and he declared that
Fort Sumter would be resupplied.157
Lincoln did not consult with Congress whether to seek a political
compromise, or whether to let the South go its own way. This is striking not
just in light of Buchanan’s narrow view of presidential power,158 but also
the history of negotiations between the North and South over slavery.
Congress had reached the Missouri Compromise of 1820;159 the
Compromise of 1850, which admitted California as a free state, allowed
slavery in the other territory conquered from Mexico,160 and enacted the
Fugitive Slave Law;161 and it had passed the Kansas-Nebraska Act of 1854,
which allowed popular sovereignty to decide on slavery in the Kansas and
Nebraska territories.162 Henry Clay, Daniel Webster, and Stephen Douglas
crafted the agreements; Presidents played bystanders with little influence.163
Congress’s superior role turned on its sole constitutional powers to regulate
the territories and to admit new states to the Union,164 but it also took
advantage of presidential weakness during much of the antebellum
period.165
Imagine what might have happened had Congress assumed the lead in
the period between Lincoln’s election and his inauguration. In early
156. See supra Part I.B.
157. See Lincoln, First Inaugural Address, supra note 63, at 218 (declaring that he will use his
power “to hold, occupy, and possess the property, and places belonging to the government”).
158. See supra Part I.A.
159. Missouri Compromise, ch. 22, 3 Stat. 545 (1820).
160. Act of Sept. 9, 1850, ch. 50, § 1, 9 Stat. 446, 452 (declaring California a free state); Act of
Sept. 9, 1850, ch. 49, § 2, 9 Stat. 446, 447 (creating the northern and western borders of Texas and
allowing slavery in New Mexico).
161. Fugitive Slave Act of 1850, ch. 60, § 6, 9 Stat. 463.
162. Kansas–Nebraska Act of 1854, ch. 59, 10 Stat. 277, 282–83 (allowing popular sovereignty
to decide on slavery in the Kansas and Nebraska territories).
163. DONALD CARTMELL, THE CIVIL WAR BOOK OF LISTS 29–30 (2001).
164. U.S. CONST. art. IV, § 3, cl. 1–2.
165. REPORT OF THE NATIONAL TASK FORCE ON THE PRESIDENCY AND DELIBERATIVE
DEMOCRACY, in THE PROSPECT OF PRESIDENTIAL RHETORIC 257–58 (James Arnt Aune & Martin J.
Medhurst eds., 2008).
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December, the House of Representatives established a committee of thirtythree, with one member for each state, while the Senate named Senators
Douglas, Jefferson Davis, John Crittenden, and William Seward to a
committee of thirteen, to reach a deal on slavery.166 The Crittenden
Compromise, as it became known, would have revived the Missouri
Compromise line and absolutely protected slavery where it existed.167 The
House committee proposed an unamendable constitutional amendment that
would prohibit federal interference with slavery in the states.168
Although he seemed aloof from the political horse-trading, Lincoln
scuttled the whole affair. While still in Springfield, Illinois, he wrote to
Republican legislators: “Let there be no compromise on the question of
extending slavery. If there be, all our labor is lost . . . .”169 Lincoln
welcomed a split sooner rather than later: “The tug has to come, [and] better
now, than any time hereafter.”170 It is true, as historians have concluded,
that the North went to war in 1861 with conservative goals in mind: to
restore the Union as it was and thus, to allow slavery to exist in the
South.171 At the same time, that Constitution contained the mechanism—
control over slavery in the territories—that allowed Lincoln to keep faith
with his moral commitment to end slavery.172 Lincoln was unwilling to give
up the fruits of electoral victory, and the workings of constitutional
democracy, to reach a settlement between North and South.173
Lincoln displayed presidential initiative not just when the war came,
but after. He exercised clear command over the generals and often urged
Union forces to attack while his subordinates preferred more time for
training and organization. After the defeat at the first Battle of Bull Run in
166. MCPHERSON, supra note 18, at 252–53, 255–56.
167. Amendments Proposed in Congress by Senator John J. Crittenden (Dec. 18, 1860),
reprinted in CONG. GLOBE, 36TH CONG., 2ND SESS. 1368 (1861), available at
http://avalon.law.yale.edu/19th_century/critten.asp.
168. Id.
169. Letter from Abraham Lincoln to Lyman Trumbull (Dec. 10, 1860), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 190, 190 (emphasis in original).
170. Id.
171. See generally HERMAN BELZ, RECONSTRUCTING THE UNION: THEORY AND POLICY
DURING THE CIVIL WAR (1969).
172. See Abraham Lincoln, Address at Cooper Institute (Feb. 27, 1860), in 3 COLLECTED
WORKS, supra note 62, at 522, 523–24 (arguing that the Federal Government controls slavery in the
territories); see also Arthur Bestor, The American Civil War as a Constitutional Crisis, in AMERICAN
LAW AND THE CONSTITUTIONAL ORDER 219, 229 (Lawrence M. Friedman & Harry N. Scheiber eds.,
1988); MCPHERSON, supra note 18, at 255 (noting that Lincoln resisted proposals that “assist[ed] or
permit[ted]” the extension of slavery into the territories (quoting Letter from Abraham Lincoln to
William H. Seward (Feb. 1, 1861), in 4 COLLECTED WORKS, supra note 62, at 183, 183)).
173. PALUDAN, supra note 1, at 33.
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July 1861, Lincoln began to intervene in military decisions.174 He replaced
General McDowell with General McClellan,175 and in November 1861 he
removed General John Fremont for his conduct in the Department of the
West.176
The burdens of the command fell heavily on Lincoln, especially as
Union casualties soared. Nonetheless, he urged the overcautious McClellan
to use his growing Army of the Potomac to move south, and he removed
and reinstated generals until he found the ones—Ulysses S. Grant and
William Tecumseh Sherman—who agreed with his strategy of going on the
offensive.177 Lincoln’s frustrations with his generals fill history books.178 It
was Lincoln who approved the broader strategy to control the Mississippi
River and divide the Confederacy in two,179 and it was Lincoln who saw,
earlier than most generals, that the war would become a war of attrition
where Northern resources would overwhelm a South with no industrial base
and a small population.
Lincoln did not seek congressional involvement in the strategic
decisions about the war. Congress’s main job was to supply the resources
needed to win on the battlefield, a task it performed far more effectively
than its Southern counterpart. Taxes were raised, bonds were sold, a federal
bank reestablished, paper currency introduced, and money spent (the federal
budget increased by 700% in the first year of the war).180 Hundreds of
thousands of soldiers were trained, equipped, and organized into units, and
once on the front they were fed and supplied far better than the enemy.
The Senate established a Committee on the Conduct of the War that
became a forum for investigation and criticism of Lincoln’s commanders,
especially those perceived to be too cautious, and for praise of those willing
to take aggressive measures.181 Lincoln and his second Secretary of War,
Edwin Stanton, did nothing to shield the generals from congressional
criticism, but instead seemed to see it as a welcome prod to McClellan and
his fellow West Pointers.182 Beyond its oversight function, however,
Congress did not play a significant role in setting war policy or strategy. As
174. See Carson et al., supra note 44, at 888.
175. George B. McClellan, OHIOHISTORYCENTRAL.ORG, http://www.ohiohistorycentral.org/w/
McClellan,_George_B.. (last visited Nov. 12, 2013).
176. PALUDAN, supra note 1, at 87.
177. John Y. Simon, Grant, Lincoln, and Unconditional Surrender, in LINCOLN’S GENERALS
168–69 (Gabor S. Boritt ed., 1994); ELIOT A. COHEN, SUPREME COMMAND 16–18 (2002).
178. See generally T. HARRY WILLIAMS, LINCOLN AND HIS GENERALS (1952).
179. Id. at 190.
180. PALUDAN, supra note 1, at 109–12.
181. Joint Committee on the Conduct of the War, U.S. SENATE, http://www.senate.gov/
artandhistory/history/common/investigations/pdf/JCCW_Fullcitations.pdf (last visited Nov. 12, 2013).
182. PALUDAN, supra note 1, at 98, 104.
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Philip Paludan has written, “Congress left most decisions on the fighting to
the generals, the secretary of war, and the president.”183 Military strategist
Eliot Cohen has shown that the development of Civil War strategy was
largely a process of civilian struggle for control of the military, which
boiled down to a contest between Lincoln and his generals.184
Throughout the war, Lincoln stayed in close contact with Grant and
Sherman, reviewed their movements, and continued to suggest different
strategies. He asked Francis Lieber, an expert on the laws of war at
Columbia University, to draft the first modern code on the rules of warfare,
and he issued it as General Orders No. 100 in April 1863.185 He did not ask
Congress to enact it by statute. Upon learning that Confederate troops had
executed surrendering black soldiers and their white officers, he threatened
retaliatory action.186 But perhaps no military policy was as far reaching as
the decision to emancipate the slaves, a measure he executed solely under
his authority as Commander-in-Chief.187
F. The Emancipation Proclamation
In the first years of the war, Radical Republicans in Congress had kept
up a drumbeat of criticism against Lincoln for not immediately ending
slavery.188 In 1861, Lincoln reversed General Fremont for ordering
emancipation in Missouri,189 and the following year he overturned General
David Hunter’s freeing of slaves in Georgia, Florida, and South Carolina.190
Lincoln was concerned about keeping the loyalty of the slave-holding
border states, especially Kentucky, the third most populous slave state and
occupant of a strategic position in the western theatre.191 Lincoln reportedly
said that he hoped for God’s support, but he needed Kentucky’s.192
183. Id. at 105.
184. See COHEN, supra note 177, at 4–5, 16–18, 31, 39, 44.
185. Francis Lieber, Instructions for the Government of Armies of the United States in the Field,
General Orders No. 100 (Apr. 24, 1863), available at http://avalon.law.yale.edu/19th_century/lieber.asp.
186. Letter from Abraham Lincoln to Edwin M. Stanton (May 17, 1864), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 594, 594–95.
187. See MCPHERSON, supra note 18, at 504 (“[A]s commander in chief [Lincoln] could order
seizure of enemy slaves just as surely as he could order destruction of enemy railroads” (emphasis
added)).
188. See id. at 494–97, 505 (describing legislative victories for radicals in Congress and their
eventual frustration due to Lincoln’s continued ambivalence toward emancipation); DONALD, LINCOLN,
supra note 18, at 374–76 (explaining the gravity of the decision to emancipate the Southern slaves).
189. MCPHERSON, supra note 18, at 353; RANDALL, supra note 18, at 354.
190. MCPHERSON, supra note 18, at 499; RANDALL, supra note 18, at 354.
191. JAMES F. SIMON, LINCOLN AND CHIEF JUSTICE TANEY: SLAVERY, SECESSION, AND THE
PRESIDENT’S WAR POWERS 202 (2006).
192. FARBER, supra note 18, at 153.
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Whether the federal government even had the power to abolish slavery
remained unresolved. As he had proclaimed in his First Inaugural Address,
Lincoln believed that slavery’s preservation was a matter of state law and
that the federal government had no power to touch it where it already
existed.193 Emancipation might qualify as the largest taking of private
property in American history, for which the government would owe just
compensation under the Fifth Amendment.194 Another question that
remained unclear was whether the United States had the right as a
belligerent, under the laws of war, to free slaves. A nation at war generally
had the right to seize enemy property when necessary to achieve its military
goals, but it could not, as an occupying power, simply take all property held
by private citizens.195
As the conflict deepened, Lincoln’s view on whether to order
emancipation as a military measure underwent significant change. He had
overturned Generals Fremont and Benjamin Butler because their
proclamations were essentially political—they sought to free all slaves in
their territories, even those unconnected to the fighting.196 When General
Butler in Virginia declared that slaves that escaped to Union lines were
“contraband” property that could be kept by the Union, Lincoln let the order
stand.197 Congress urged a more radical approach by enacting two
Confiscation Acts: the first deprived rebels of ownership of their slaves put
to work in the war; the second freed the slaves encountered by Union
forces.198 Because both laws required an individual hearing before a federal
judge prior to freeing a slave, neither had much practical effect.199
Of greater impact was the July 1862 Militia Act, which freed the slave
of any rebel, if that slave joined the U.S. armed forces.200 On August 25,
1862, Secretary of War Stanton authorized the raising of the first 5,000
black troops for the Union army.201 As the war grew increasingly difficult,
Lincoln became convinced that emancipation would be a valuable weapon
for the Union cause.202 It would undermine the Confederacy’s labor force
193. See supra Part I.B.
194. U.S. CONST. amend. V.
195. FARBER, supra note 18, at 154–55 (quoting HENRY WHEATON, ELEMENTS OF
INTERNATIONAL LAW 416–21 (6th ed. 1855)).
196. RANDALL, supra note 18, at 354.
197. PALUDAN, supra note 1, at 84.
198. Confiscation Act, ch. 60, §§ 1, 4, 12 Stat. 319 (1861); Second Confiscation Act, ch. 195, 12
Stat. 589 (1862).
199. 12 Stat. at 591. See RANDALL, supra note 18, at 357.
200. Militia Act, ch. 201, 12 Stat. 597, 599 (1862).
201. DUDLEY TAYLOR CORNISH, THE SABLE ARM: NEGRO TROOPS IN THE UNION ARMY, 1861–
1865, at 53, 80 (1966).
202. See ALLEN C. GUELZO, LINCOLN’S EMANCIPATION PROCLAMATION: THE END OF
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and economy while providing a much-needed pool of recruits for the Union
armies.203
As the cost of the war in blood and treasure became ever dearer,
demands for an end to slavery grew louder in the North.204 At the same
time, the border states rejected proposals for gradual emancipation paid for
by the federal government.205 By late July 1862, Lincoln had a draft
proclamation of emancipation ready and had notified his cabinet, which
advised him to wait for a Union victory.206 Antietam provided Lincoln the
moment.207
While Union casualties were steep (2,108 dead and 9,549 wounded—
up to that point the most American casualties ever suffered in a single
day208), the Army of the Potomac had forced the Confederate Army from
the field. On September 22, 1862, five days after the battle, Lincoln issued
the Emancipation Proclamation as President and Commander-in-Chief.209 It
declared that all slaves in area under rebellion as of January 1, 1863, “shall
be then, thenceforward, and forever free; and the executive government of
the United States, including the military and naval authority thereof, will
recognize and maintain the freedom of such persons.”210 Lincoln stated his
intention to ask Congress for compensation for the loyal slave states that
voluntarily adopted emancipation and for Southerners who lost slaves but
remained loyal to the Union.211
The President remained clear that the war was not about slavery, but
“for the object of practically restoring the constitutional relation between
the United States” and the rebel states.212 Nevertheless, his proclamation
freed 2.9 million slaves: 74% of all slaves in the United States and 82% of
the slaves in the Confederacy.213 On January 1, 1863, Lincoln issued the
final Emancipation Proclamation, “by virtue of the power in me vested as
Commander-in-Chief, of the Army and Navy of the United States in time of
SLAVERY IN AMERICA 207–08, 210, 214 (2006).
203. Id. at 214, 217.
204. FARBER, supra note 18, at 153 (“As the war became increasingly bloody, the feeling
swelled that the root of the rebellion, the slave system, needed to be destroyed.”).
205. Id. (noting that Lincoln had proposed “gradual and compensated emancipation in the
border states” but that “these proposals were never adopted”).
206. Id. at 153–54.
207. Id.
208. NORMAN S. STEVENS, ANTIETAM 1862: THE CIVIL WAR’S BLOODIEST DAY 85 (1994).
209. Abraham Lincoln, Preliminary Emancipation Proclamation (Sept. 22, 1862), in LINCOLN,
SPEECHES AND WRITINGS, supra note 1, at 368, 368–70.
210. Id. at 368.
211. Id.
212. Id.
213. PALUDAN, supra note 1, at 155.
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actual armed rebellion against [the] authority and government of the United
States.”214 The President rooted the constitutional justification for the
Emancipation Proclamation as “a fit and necessary war measure for
suppressing said rebellion.”215
Lincoln’s dependence on his constitutional authority explains the
Proclamation’s careful boundaries. He did not free any slaves in the loyal
states, nor did he seek to remake the economic and political order of
Southern society. Lincoln never claimed a broad right to end slavery.
Rather, the Emancipation Proclamation was an exercise of the President’s
war power to undertake measures necessary to defeat the enemy.
With the cost of war in both men and money rising steeply,
emancipation became a means to the end of restoring the Union. Shortly
before issuing the preliminary Proclamation, Lincoln wrote to Republican
newspaper editor Horace Greeley, and through him to a broad readership,
that his goal was to restore “the Union as it was.”216 Emancipation was
justified only so far as it helped achieve victory. “My paramount object in
this struggle is to save the Union, and is not either to save or to destroy
slavery,” Lincoln wrote.217 “If I could save the Union without freeing any
slave I would do it, and if I could save it by freeing all the slaves I would do
it; and if I could save it by freeing some and leaving others alone I would
also do that.”218
After he issued the Proclamation, Lincoln made clear that the
Commander-in-Chief Clause allows measures based on military necessity
that would not be legal in peacetime. Responding to critics of the
Proclamation’s constitutionality from his home state, he admitted that “I
certainly wish that all men could be free, while I suppose you do not.”219
Still, emancipation was a valid war measure. “I think the constitution
invests its commander-in-chief, with the law of war, in time of war,” he
wrote.220 Anything that belligerents could lawfully do in wartime, therefore,
fell within the President’s authority.
There was no question in Lincoln’s mind that taking the enemy’s
property was a legitimate policy in war. “Armies, the world over, destroy
enemies’ property when they cannot use it; and even destroy their own to
214. Lincoln, Final Emancipation Proclamation, supra note 1, at 424.
215. Id.
216. Letter from Abraham Lincoln to Horace Greeley (Aug. 22, 1862), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 357, 358 (internal quotation marks omitted).
217. Id.
218. Id.
219. Letter from Abraham Lincoln to James C. Conkling (Aug. 26, 1863), in LINCOLN,
SPEECHES AND WRITINGS, supra note 1, at 495, 496.
220. Id. at 497.
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keep it from the enemy.”221 Lincoln went on to say: “Civilized belligerents
do all in their power to help themselves, or hurt the enemy, except a few
things regarded as barbarous or cruel,” such as the massacre of prisoners or
non-combatants.222 Lincoln would consider anything permitted by the laws
of war.
Emancipation did not just deny the South a vital resource, but it also
provided black soldiers for the war effort.223 Lincoln claimed that Union
generals “believe the emancipation policy, and the use of colored troops,
constitute the heaviest blow yet dealt to the rebellion.”224 Black soldiers
saved the lives and energies of white soldiers, and, indeed, the lives and
rights of white civilians.225 “You say you will not fight to free negroes,”
Lincoln wrote.226 “Some of them seem willing to fight for you . . . .”227 But
he closed by emphasizing again that emancipation was not the goal, but the
means.228 When the war ended, “[i]t will . . . have been proved that, among
free men, there can be no successful appeal from the ballot to the bullet; and
that they who take such appeal are sure to lose their case, and pay the
cost.”229 When that day comes, Lincoln promised, “there will be some black
men who can remember that, with silent tongue, and clenched teeth, and
steady eye, and well-poised bayonet,” they helped achieve victory.230
The Emancipation Proclamation is usually studied as a question of the
war powers of the national government, though it has also been studied as a
question of whether it amounted to a taking of property requiring
compensation.231 What is sometimes neglected is that the Proclamation was
a startling demonstration of the constitutional powers of the Presidency.
Lincoln decided that military necessity justified emancipation.232 The
Supreme Court did not reach the question of the wartime confiscation of
property until after the war, when it upheld the seizure, transfer, and
destruction of private property that supported the enemy’s ability to carry
221. Id.
222. Id.
223. Id.
224. Id.
225. Id. at 498.
226. Id.
227. Id.
228. Id. at 499.
229. Id.
230. Id.
231. See, e.g., FARBER, supra note 18, at 156 (discussing the argument that the Emancipation
Proclamation violated the Takings Clause); id. at 154–55 (evaluating the merits of the Emancipation
Proclamation as an exercise of war powers).
232. Id. at 154.
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on hostilities.233 While Congress passed the two Confiscation Acts, it
required individual hearings proving that a slave’s owner was engaged in
the rebellion or that a slave was being used in the Confederacy’s war
effort.234 Lincoln freed the slaves en masse and bypassed the painstaking
judicial procedures established by Congress. The Legislature authorized the
acceptance of escaped slaves into the Union armed forces, but it remained
for the President to organize and deploy in combat the more than 130,000
freedmen who joined the Union armies.235
G. The Thirteenth Amendment
While the Proclamation had a broad scope, it also recognized the limits
of presidential power. It only touched those areas, the Southern states,
where slaves helped the enemy.236 It did not affect the institution of slavery
in the loyal states.237 Emancipation would no longer be a justifiable war
measure once the fighting ceased, and it could even be frustrated by the
other branches while war continued.238 Congress might use its own
constitutional powers to establish a different regime—a reasonable concern
with Democratic successes in the 1862 midterm elections—and allow the
states to restore slavery once the war ended.
Lincoln understood that to ensure slavery’s permanent end, the states
would have to adopt a constitutional amendment making emancipation
permanent. Toward the end of the war, he pressed for adoption of a
complete prohibition of slavery in what eventually became the Thirteenth
Amendment. Ratification made the link between emancipation and
democratic rule clear. In June 1864, Congress rejected the amendment,
233. See Miller v. United States, 78 U.S. (11 Wall.) 268, 269, 313–14 (1870) (upholding the
confiscation of rebel property); Ford v. Surget, 97 U.S. 594, 605 (1878) (upholding the legality of
destroying rebel property); and New Orleans v. Steamship Co., 87 U.S. (20 Wall.) 387, 395 (1874)
(upholding the legality of transferring rebel property during the war).
234. Confiscation Act, ch. 60, §§ 1, 4, 12 Stat. 319 (1861); Second Confiscation Act, ch. 195,
§§ 6, 9, 12 Stat. 589 (1862).
235. Yoo, Unitary, Executive, or Both?, supra note 11, at 2015 (citing MCPHERSON, supra note
18, at 769).
236. Lincoln, Final Emancipation Proclamation, supra note 1, at 425 (freeing all slaves within
any state or designated part of a State where the people are “in rebellion against the United States”); see
id. (designating the following states as areas in rebellion, with some exceptions: “Arkansas, Texas,
Louisiana, . . . Mississippi, Alabama, Florida, Georgia, South-Carolina, North Carolina, and Virginia”).
237. Id. (limiting emancipation to areas where the people are in rebellion).
238. See, e.g., Farber, supra note 18, at 157(“Congress probably had concurrent power over
emancipation, either under its specific power to make rules for captures on land or under its more
general power to effectuate the conduct of war (implicit in the power to declare war).”).
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which would have been the first since the changes to the Electoral College
after the Jefferson-Burr deadlock in 1800.239
After resounding Republican victories in the November elections,
Lincoln called upon the same lame-duck Congress to ratify the Thirteenth
Amendment. “It is the voice of the people now, for the first time, heard
upon the question.”240 In a time of “great national crisis,” Lincoln said
“unanimity of action” was needed, and that required “some deference . . . to
the will of the majority, simply because it is the will of the majority.”241
Congress promptly agreed to ratify the amendment even before the new
Republican majorities took over.242
Lincoln’s great political achievement was to meld the original purpose
of the war with the new goal of ending slavery. Emancipation of the slaves
and restoration of the Union both drew upon Lincoln’s belief, expressed in
his First Inaugural Address, that the Constitution enshrined a democratic
process in which the fundamental decisions were up to the people, as
expressed in the ballot box.243 He tied together the concepts of popular
sovereignty and liberty in the Gettysburg Address, reconciling the political
structure of the Constitution with the values of the Declaration of
Independence.244
Lincoln justified the carnage of the battle with the prospect of
preserving the “new nation,” created by “our fathers,” that was “conceived
in Liberty, and dedicated to the proposition that all men are created
equal.”245 The equality of all men, of course, was not an explicit goal of the
Union as established in the Constitution, but instead was recognized by the
Declaration.246 Lincoln called on “us the living” to dedicate themselves “to
the great task remaining before us,” to ensure “that this nation, under God,
shall have a new birth of freedom,” and “that government of the people, by
the people, for the people, shall not perish from the earth.”247 Restoring the
Union now stood for two propositions: the working of popular democracy
239. Yoo, Unitary, Executive, or Both?, supra note 11, at 2015 (citing PALUDAN, supra note 1,
at 300–01).
240. Abraham Lincoln, Annual Message to Congress (Dec. 6, 1864), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 646, 658.
241. Id.
242. Yoo, Unitary, Executive, or Both?, supra note 11, at 2016 (citing PALUDAN, supra note 1,
at 301–02).
243. See Lincoln, Message to Congress in Special Session, supra note 83, at 439.
244. See A NEW BIRTH, supra note 3, at 79–80 (2000) (describing the connections between the
Declaration of Independence and the Gettysburg Address); JAFFA, HOUSE DIVIDED, supra note 3, at
227–28.
245. Lincoln, Address at Gettysburg, supra note 3, at 536.
246. THE DECLARATION OF INDEPENDENCE, para. 2 (U.S. 1776).
247. Lincoln, Address at Gettysburg, supra note 3, at 536.
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and freedom and equality for all men. Emancipation may have been a
policy justified by military necessity, but it became an end of the war as
well as a means.
Lincoln’s words at Gettysburg illustrated, as perhaps nothing else
could, the President’s control over national strategy in wartime. When the
war began, Lincoln established the limited goal of restoring the Union.248
Congress likewise agreed in the Crittenden-Johnson resolutions, which
declared that the goal of the war was preservation of the Union, and which
preserved the “established institutions” of slavery in the existing states.249
Initial military strategy focused on blockading the Confederacy in the East
while dividing it in the West through capture of the Mississippi.250 This
“Anaconda” strategy would slowly strangle the South until it came back to
its senses and returned to the Union.251
By the middle of 1862, stiff Southern resistance had convinced Lincoln
that only unconditional surrender could end the war. His war goals
expanded beyond the restoration of the Union to include, after the
Emancipation Proclamation, freedom for all. Strategy shifted to the
destruction of Confederate armies in the field and the end of the
government in Richmond. Lincoln’s declaration that the war sought a new
birth of freedom, he believed, would encourage “the army to strike more
vigorous blows” by setting an example of the administration “strik[ing] at
the heart of the rebellion.”252
Lincoln rejected Southern peace feelers that only sought a restoration
of the Union without emancipation. In response to one Southern effort to
open negotiations, which Lincoln suspected was false anyway, the President
sent emissaries with instructions that negotiations could only begin after the
South accepted the Union and the permanent abandonment of slavery.253
248. See supra notes 84–85 and accompanying text; see also Lincoln, Message to Congress in
Special Session, supra note 83, at 439.
[T]he Executive deems it proper to say, it will be his purpose then, as ever to be
guided by the Constitution, and the laws; and that he probably will have no
different understanding of the powers, and duties of the Federal government,
relatively to the rights of the States and the people, under the Constitution, than
that expressed in the inaugural address.
Id.
249. CONG. GLOBE, 37TH CONG., 1ST SESS. 322–23 (1861).
250. JAMES M. MCPHERSON, ABRAHAM LINCOLN AND THE SECOND AMERICAN REVOLUTION
75 (1991).
251. See id. at 75–76.
252. Id. at 84 (quoting GIDEON WELLES, THE HISTORY OF EMANCIPATION 842–43 (1872),
available at https://archive.org/details/historyofemancip00well).
253. DONALD, LINCOLN, supra note 18, at 523.
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This “surprise” term went beyond the Emancipation Proclamation, which
was limited only to Confederate territory in wartime, and even Lincoln’s
understanding of the powers of Congress.254 Jefferson Davis spurned the
Northern representatives with the words that “[w]e are not fighting for
slavery. We are fighting for Independence,—and that, or extermination, we
will have.”255 Describing the exchanges later, Lincoln wrote that “[b]etween
him and us the issue is distinct, simple, and inflexible. It is an issue which
can only be tried by war, and decided by victory.”256 Lincoln’s control over
the conduct of the war had transformed the political goals of the conflict
into union and liberty, and made the means no longer limited war, but a
drive for total victory.
II. CIVIL LIBERTIES IN WARTIME
The unique nature of the Civil War forced the Lincoln administration
to reduce civil liberties in favor of greater internal security. Unlike a war
against a foreign nation, the rebellion was fought against other Americans,
and events in Maryland and Missouri showed that parts of Union territory
would have to be placed under military rule.257 The common heritage of the
North and South increased the likelihood of irregular guerilla fighting,
espionage, and sabotage.258 Southerners could operate easily behind Union
lines and find supporters of their cause.259 Significant political dissent from
Democrats and anti-war opponents worried the administration, which tried
to walk a fine line between respecting free speech and the political process
and preventing the disloyal from undermining the war effort.260 Congress
did not give its immediate approval to all of Lincoln’s actions; it did not
enact any law regarding habeas corpus until 1863.261
Lincoln initially gave Secretary of State Seward the job of operating an
internal security service responsible for detaining those suspected of aiding
the Confederacy.262 His special agents either arrested suspects themselves
or asked the military or local police to do so at strategic points in cities,
254. Id.
255. Id. (emphasis in original) (internal quotation marks omitted).
256. Lincoln, Annual Message to Congress, supra note 240, at 660.
257. The unique civil liberty challenges of the Civil War are described in NEELY, supra note 18,
at 4–9, 44.
258. See, e.g., id. at 32, 33, 38.
259. Id. at 78.
260. Id. at 27–28.
261. An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases,
ch. 81, 12 Stat. 755 (1863).
262. PALUDAN, supra note 1, at 73.
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ports, and transportation hubs.263 Seward even had newspaper editors and
state politicians suspected of disloyalty thrown in detention and had the
mails opened to search for espionage.264 Seward boasted to a foreign
diplomat that he could “ring a little bell” and have anyone in the country
arrested.265
A. Balancing Constitutional Duties: Preserving the Nation and Upholding
the Law
Lincoln’s domestic policies on detention logically followed those
applied to combat. More than 400,000 prisoners were captured in the war
by both sides combined.266 Under Lincoln’s theory that the Southern states
were still part of the Union, all of the members of the Confederacy were
still American citizens. In war, however, the United States used force to kill
and capture Confederate soldiers, destroy Confederate property, and impose
martial law on occupied Confederate territory.267 Prisoners had no right to a
jury trial, and Confederate civilians had neither a right to sue for damages
for destroyed property nor a right to immediately govern themselves.268
Occupied Confederate states would have no right to send Senators and
Representatives to Congress once Union control had returned.269
The normal process of law could not handle the unique nature of the
rebellion. Confederate leaders, for example, were being detained not
because they were guilty of a crime, but because their release would pose a
future threat to the safety of the country. What if federal authorities, Lincoln
wrote in a letter published in June 1863, could have arrested the military
leaders of the Confederacy, such as Generals John Breckinridge, Robert E.
Lee, and Joseph Johnston, at the start of the war?270
263. Id. at 73, 75.
264. Id. at 74.
265. 2 FREDERIC BANCROFT, THE LIFE OF WILLIAM H. SEWARD 280 (1899).
266. CHARLES W. SANDERS, JR., WHILE IN THE HANDS OF THE ENEMY: MILITARY PRISONS OF
THE CIVIL WAR 1 (2005).
267. FARBER, supra note 18, at 144–45 (listing intrusions upon individual liberty and suggesting
that constitutional rights “evaporated” in the wake of the Union army).
268. See FARBER, supra note 18, at 144, 147 (stating that the Union armies seized cotton and
freed slaves as they advanced through the South); NEELY, supra note 18, at 123–24 (emphasizing that
the suspension of habeas corpus contributed to the uncountable multitude of civilians held under military
rule).
269. Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 YALE L.J. 453, 502–03
(1989).
270. Letter from Abraham Lincoln to Erastus Corning and Others, supra note 35, at 458.
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Unquestionably if we had seized and held them, the insurgent
cause would be much weaker,” Lincoln argued.271 “But no one of
them had then committed any crime defined in the law. Every
one of them, if arrested, would have been discharged on habeas
corpus were the writ allowed to operate.”272
Suspension of the writ made clear that captured Confederates could not
seek the benefits of the very civilian legal system that they sought to
overthrow.
Lincoln’s July 4, 1861, message to the special session of Congress
mounted a powerful defense of his suspension of the writ. He argued that
his presidential duty called upon him to protect the Constitution first, before
the decisions of the Supreme Court. “The whole of the laws which were
required to be faithfully executed, were being resisted, and failing of
execution, in nearly one-third of the States.”273 Saving the Union from a
mortal threat, Lincoln suggested, could justify a violation of the
Constitution and the laws, and certainly a single provision of them.
Must they be allowed to finally fail of execution, even had it been
perfectly clear, that by the use of the means necessary to their
execution, some single law, made in such extreme tenderness of
the citizen’s liberty, that practically, it relieves more of the guilty,
than of the innocent, should, to a very limited extent, be
violated?274
In a famous passage, Lincoln asked, “[A]re all the laws, but one, to go
unexecuted, and the government itself go to pieces, lest that one be
violated?”275 He suggested that painstaking attention to the habeas corpus
provision would come at the expense of his ultimate constitutional duty—
saving the Union.276 “Even in such a case, would not the official oath be
broken, if the government should be overthrown, when it was believed that
disregarding the single law, would tend to preserve it?”277
Lincoln performed some acrobatics to pull back from a constitutional
conflict. It was obvious that the nation indeed was confronted with
271.
272.
273.
274.
275.
276.
277.
Id.
Id.
Lincoln, Special Message to Congress, supra note 2, at 252.
Id. at 252–53.
Id. at 253 (emphasis in original).
Id.
Id.
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“rebellion or invasion.”278 Written in the passive voice, the Constitution’s
habeas corpus provision did not specify which branch had the right to
suspend it.279 Lincoln quickly returned to the need for prompt executive
action to address the crisis. “[A]s the provision was plainly made for a
dangerous emergency,” he wrote, “it cannot be believed the framers of the
instrument intended, that in every case, the danger should run its course,
until Congress could be called together.”280 A rebellion might even prevent
Congress from meeting.
In an opinion issued the next day, Attorney General Edward Bates
agreed that the President’s duty to execute the laws and uphold the
Constitution required him to suppress the rebellion, using the most effective
means available.281 If the rebels sent an army, the President had the
discretion to respond with an army. “[I]f they employ spies and emissaries,
to gather information, to forward rebellion, he may find it both prudent and
humane to arrest and imprison them,” Bates wrote.282 Despite the vagueness
of the Suspension Clause, the President must have the ability to suspend
habeas corpus in the case of a “pressing emergency” that requires him to
“call to his aid the military power of the nation.”283 In times of emergency,
“the President must, of necessity, be the sole judge, both of the exigency
which requires him to act, and of the manner in which it is most prudent for
him to employ the powers entrusted to him . . . .”284
Bates’s legal opinion launched a frontal assault on Taney’s claim to
judicial supremacy in Merryman.285 “To say that the departments of our
government are co-ordinate, is to say that the judgment of one of them is
not binding upon the other two, as to the arguments and principles involved
in the judgment.”286 Independence required that no branch could compel
another.287 No court could issue a writ requiring compliance by the
President, just as no President could order a court how to decide a case.288
278. U.S. CONST. art. I, § 9, cl. 2.
279. Id.
280. Lincoln, Special Message to Congress, supra note 2, at 253.
281. Suspension of the Privilege of the Writ of Habeas Corpus, 10 Op. Att’y Gen. 74, 82–83
(1861).
282. Id. at 83.
283. Id. at 87, 90.
284. Id. at 84.
285. Compare id. at 86 (describing suspension of the writ of habeas corpus during wartime as a
political power not subject to judicial review), with Ex parte Merryman, 17 F. Cas. 144, 152 (C.C.D.
Md. 1861) (holding suspension of the writ to be a usurpation of judicial authority by the President and
the military).
286. Suspension of the Privilege, 10 Op. Att’y Gen. at 77.
287. Id.
288. Id. at 77, 85–86.
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Bates’s opinion ventured even further than Lincoln’s view on Dred Scott,
which Lincoln agreed to enforce at least as to the parties in the case.289
Bates’s claim of the independent status of each branch implied that the
President had no obligation to obey a court judgment even in that narrow
case290—a position that the administration had to adopt because Lincoln had
already ignored Taney’s order releasing Merryman. 291
Bates questioned whether the courts had any competence to decide
questions relating to the war:
[T]he whole subject-matter is political and not judicial. The
insurrection itself is purely political. Its object is to destroy the
political government of this nation and to establish another
political government upon its ruins. And the President, as the
chief civil magistrate of the nation, and the most active
department of the Government, is eminently and exclusively
political, in all his principal functions.292
A court, Bates concluded, had no authority to review these political
decisions of the President.293 The Attorney General suggested that
something like the modern Political Question Doctrine applied to
judicial review of the President’s wartime decisions.294 Almost as an
aside, Bates addressed the merits of the constitutional question. He
observed that the Suspension Clause was vague and did not specify
whether Congress alone, or the President as well, could suspend habeas
corpus.295 He argued that it was absurd to allow habeas corpus to
benefit enemies in wartime, as it would imply that the enemy could sue
for replevin of the return of arms and munitions that had been
confiscated by the Union.296
289. See Abraham Lincoln, First Inaugural Address, supra note 63, at 221 (establishing
Lincoln’s view).
290. See Suspension of the Privilege, 10 Op. Att’y Gen. at 78 (arguing that the judicial branch
has powers that are “ample and efficient” for resolving conflicts between individual parties, but that it is
“powerless to impose rules of action and of judgment upon the other departments”).
291. FARBER, supra note 18, at 164–66.
292. Suspension of the Privilege, 10 Op. Att’y Gen. at 86.
293. Id.
294. Id.
295. Id. at 88–89.
296. Id. at 91.
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B. Crime v. War: The Suppression of Northern Agitators
In September 1862, the President turned to more aggressive measures.
Military rule had displaced civilian government in areas touched by the
battlefield, in the border states where Confederate irregulars conducted
guerilla operations, and in recaptured territory.297 Martial law went
unmentioned in the Constitution but had been used during the Revolution
and the War of 1812,298 and had even been upheld by Chief Justice Taney in
a case involving civil unrest in Rhode Island.299 Lincoln drew upon his
Commander-in-Chief power to impose military rule in areas where fighting
or occupation were ongoing.
In a September 24, 1862, proclamation, Lincoln extended military
jurisdiction beyond the battlefield to those giving assistance to the enemy
behind the lines.300 He ordered the military to detain anyone within the
United States who gave aid or comfort to the rebels, and anyone who
resisted the draft or discouraged volunteers from enlisting.301 Detainees
would have no right to seek a writ of habeas corpus and would be tried by
courts martial or military commission, a form of military court used to try
the enemy or civilians for violations of the laws of war and to administer
justice in occupied territory.302 Under Lincoln’s order, the jurisdiction of the
military commissions extended to those suspected of assisting the rebellion
or disrupting the war effort well behind the front lines.
Union officials primarily deployed these authorities in or near active
hostilities to detain spies and saboteurs. A common use was to capture
irregular Confederate forces that were killing Union soldiers and attacking
supply trains in states such as Missouri, or to maintain order in recaptured
territory such as Tennessee.303 Civilian processes of justice simply could not
handle cases of widespread violence by guerillas and Confederate soldiers
in the areas around the front lines.304 According to existing Union records,
297. See, e.g., NEELY, supra note 18, at 32–33, 39 (describing military rule in Missouri, a border
state).
298. G. Norman Lieber, Martial Law During the Revolution, 1 MAG. AM. HIST. 538, 538–39
(1877); REGINALD C. STEWART, CIVIL-MILITARY RELATIONS IN THE WAR OF 1812, at 101 (2009).
299. Luther v. Borden, 48 U.S. (7 How.) 1, 45–46 (1849); see also Moyer v. Peabody, 212 U.S.
78, 83–84 (1909) (reaffirming Luther v. Borden and approving martial law); FARBER, supra note 18, at
148–49 (providing background on both cases and explaining that both approved martial law).
300. Abraham Lincoln, Proclamation Suspending the Writ of Habeas Corpus (Sept. 24, 1862) in
LINCOLN, SPEECHES AND WRITINGS, supra note 1, at 371, 371.
301. Id.
302. Id.
303. NEELY, supra note 18, at 169.
304. See id. at 168–69 (explaining how civil unrest and disorder in the border states led to
military tribunals and draconian government measures).
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the army conducted 4,271 military commission trials during the Civil
War.305 About 55% took place in Missouri, Kentucky, and Maryland,306
border states that saw significant disorder and unrest, with Missouri alone
accounting for about 46%.307 Almost all of these cases involved guerrilla
activity, horse-stealing, and bridge-burning.308
Lincoln ordered the use of military detention and trial in the North, not
because it was under direct threat of attack, but because agitators were
interfering with the North’s war effort. Although recent historical work has
shown that Union officials did not exercise these authorities as broadly
against political activity as some have thought, Union officials did detain
and try newspaper editors and politicians who urged disloyalty or
opposition to the administration’s war measures.309 The most well-known
case was that of Clement Vallandigham, a former member of Congress and
Ohio Democrat who was seeking his party’s nomination for Governor on a
peace platform.310 Union authorities arrested Vallandigham for a speech
attacking the war as “wicked, cruel, and unnecessary” because it sought to
abolish slavery rather than restore the Union.311 He made a particular point
of attacking “King Lincoln” for depriving Northerners of their civil
liberties.312 A military commission convicted Vallandigham and sentenced
him to prison for the rest of the war, but Lincoln altered the sentence to
banishment to the Confederacy.313
Vallandigham’s case became a cause célèbre to Lincoln’s opponents in
the North, who accused him of wielding dictatorial powers ever since the
start of the war.314 Unlike Merryman, the Ohio Democrat had refrained
from any overtly hostile actions against the United States, other than using
his right to free speech to criticize the administration’s wartime policies.
The Supreme Court refused to hear Vallandigham’s petition for a writ of
habeas corpus because a military commission was not a court over which it
305.
306.
307.
308.
309.
310.
Id.
Id.
Id.
Id.
See id. at 28, 65–68.
See generally JENNIFER L. WEBER, COPPERHEADS: THE RISE AND FALL OF LINCOLN’S
OPPONENTS IN THE NORTH (2006); FRANK KLEMENT, THE LIMITS OF DISSENT: CLEMENT L.
VALLANDIGHAM AND THE CIVIL WAR (1999).
311. THE TRIAL OF THE HONORABLE CLEMENT L. VALLANDIGHAM, BY A MILITARY
COMMISSION: AND THE PROCEEDINGS UNDER HIS APPLICATION FOR A WRIT OF HABEAS CORPUS IN THE
CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO 11 (Ricky and Carroll
1863) [hereinafter THE TRIAL] (internal quotation marks omitted).
312. Id. at 23 (internal quotation marks omitted); see FARBER, supra note 18, at 171.
313. THE TRIAL, supra note 311, at 34.
314. See MARK NEELY, supra note 18, at 66.
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could exercise review.315 Its decision effectively removed the federal courts
as a check on executive detention while hostilities were ongoing. As
political protests erupted, Ohio Democrats nominated Vallandigham for
Governor on a platform of opposition to executive tyranny.316
In a June 12, 1863, public letter to New York Democrats, Lincoln
responded that his administration had properly held Vallandigham because
the Constitution recognized that military rule was appropriate “when, in
cases of rebellion or invasion, the public safety may require.”317 “[U]nder
cover of ‘liberty of speech,’ ‘liberty of the press,’ and ‘habeas corpus,’”
Lincoln claimed, the Confederacy “hoped to keep on foot among us a most
efficient corps of spies, informers, suppliers, and aiders and abettors of their
cause in a thousand ways.”318 Enemies were not just those who took up
arms against the Union, but those who attempted to prevent the
mobilization of its men and industry. Words could be just as deadly as
bullets. “[H]e who dissuades one man from volunteering, or induces one
soldier to desert, weakens the Union cause as much as he who kills a Union
soldier in battle.”319 In one of his memorable turns of phrase, Lincoln asked:
“Must I shoot a simple-minded soldier boy who deserts, while I must not
touch a hair of a wily agitator who induces him to desert?”320
Arresting civilians for crimes and detaining the enemy in war achieved
different goals in different circumstances. “The former is directed at the
small [percentage] of ordinary and continuous perpetration of crime,”
Lincoln argued, “while the latter is directed at sudden and extensive
uprisings against the Government.”321 During war, detention “is more for
the preventive and less for the vindictive.”322 He rejected the Democrats’
argument that military detention could run only on the battlefield or in
occupied territory.323 Lincoln interpreted the Constitution as allowing
suspension of the writ “wherever the public safety” requires, not just in
areas of actual combat.324 Lincoln remained conscious that political speech
should not be suppressed. Vallandigham “was not arrested because he was
damaging the political prospects of the Administration, or the personal
interests of the Commanding General, but because he was damaging the
315.
316.
317.
318.
319.
320.
321.
322.
323.
324.
Ex Parte Vallandigham, 68 U.S. (1 Wall.) 243, 253 (1863).
KLEMENT, supra note 310, at 178–80.
Letter from Abraham Lincoln to Erastus Corning and Others, supra note 35, at 459.
Id. at 456.
Id. at 457.
Id. at 460.
Id. at 458.
Id.
Id. at 455.
Id. at 458–59 (emphasis in original).
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41
Army, upon the existence and vigor of which the life of the Nation
depends.”325 Lincoln closed by invoking Andrew Jackson, who, as military
governor in New Orleans, arrested a newspaper editor and judge for
endangering public order while the city was under threat of British
invasion.326
Even as Lee’s armies marched north toward Pennsylvania, Ohio
Democrats sent a letter to Lincoln criticizing his domestic security
policies.327 They claimed that the President treated the Constitution as if it
were different during war than peace, and that he had trampled on
individual liberties.328 Lincoln defended his suspension of the writ on the
ground that the Constitution did not specify which branch held the authority
to suspend.329 He turned to the basic difference between crime and war. The
nature of war required detentions without trial, which “have been for
prevention, and not for punishment—as injunctions to stay injury, as
proceedings to keep the peace.”330
Turning to the rhetorical offensive, Lincoln accused the Ohio
Democrats of encouraging resistance to lawful authority by rejecting the
legitimacy of military force to restore the Union. “Your own attitude,
therefore, encourages desertion, resistance to the draft and the like,”
Lincoln claimed, “because it teaches those who incline to desert, and to
escape the draft, to believe it is your purpose to protect them.”331 Lincoln
challenged the Ohio Democrats to agree that a military response to
secession was valid, that they should not hinder the efficient operation of
the army or navy, and that they should support the troops.332 They refused,
but Lincoln had won the battle (but not the war) for public opinion. He had
appealed to more than just military necessity, and he had carefully argued
that his exercise of extraordinary powers remained within the
Constitution.333
325. Id. at 459.
326. Id. at 461–62.
327. Abraham Lincoln, Reply to the Ohio Democratic Convention (June 29, 1863), in LINCOLN,
SPEECHES AND WRITINGS, supra note 1, at 465, 466, 467.
328. Id. at 466–67.
329. Id. at 467.
330. Id. at 468 (emphasis in original).
331. Id. at 469.
332. Id. at 470.
333. Id. at 465–69; PALUDAN, supra note 1, at 201–02.
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C. Congressional Agreement on Civil Liberties
Congress waited until March 1863 to approve the President’s
suspension of habeas corpus.334 Although some leading Republican and
Democratic members of Congress had severe misgivings over the policy,
some historians have read Congress’s silence as implicit approval of
Lincoln’s actions.335 And indeed, the Habeas Corpus Act recognized
Lincoln’s suspension of the writ, immunized federal officers who detained
prisoners, and left untouched executive policy on the detention of prisoners
of war and the operations of military commissions.336
Others have argued that the Act rebuked Lincoln, because it required
the military to provide the courts with lists of prisoners and to allow for
their release if they were not indicted by a grand jury.337 As J.G. Randall
has pointed out, these arguments ignore the fact that the Lincoln
administration did not change its detention policies in any meaningful
way.338 The military did not interpret the Act to apply to anyone triable by
military commission or places where martial law held sway.339
Vallandigham himself, for example, would not have benefited from the Act.
The Secretary of War or the military sometimes simply refused to provide
complete lists of prisoners to the federal courts, and it appears that there
was no measurable difference in the number of civilians arrested or released
because of the Act.340 Randall estimates that the Lincoln administration
detained approximately 13,500 citizens.341 Mark Neely puts the number at
about 12,600, though the records are incomplete.342
D. Ex parte Milligan: The Judiciary Checks Executive War Powers
Not until the end of the war did the other branches of government truly
push back. In Ex parte Milligan, the Supreme Court took up the case of an
Indiana Peace Democrat who had conspired to raid federal arsenals and
prisoner-of-war camps.343 In December 1864, a military commission
334. An Act Relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases,
ch. 81, § 1, 12 Stat. 755 (1863).
335. NEELY, supra note 18, at 68, 202.
336. § 1, 12 Stat. at 755.
337. RANDALL, supra note 18, at 166 (suggesting that the Habeas Corpus Act was designed to
recover authority for the Legislature, from the Executive).
338. Id.
339. Id. at 167.
340. Id.
341. Id. at 152 n.25.
342. NEELY, supra note 18, at 130.
343. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 6–7 (1866); FARBER, supra note 18, at 164.
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43
convicted Milligan and sentenced him to death, a sentence that President
Johnson later commuted to life imprisonment.344 Milligan and his coconspirators filed for a writ of habeas corpus. In 1866, the Supreme Court
overturned the military commission and ordered the release of Milligan.345
It held that he could not be tried by the military because he was not a
resident of a Confederate state, not a prisoner of war, and never a member
of the enemy’s armed force.346 He had been captured in Indiana, where the
normal civilian courts were open, and there was no showing of a military
necessity to try him outside of that system.347 Only if Indiana had been
under attack and the normal judicial system closed, the Court found, could
Milligan be subject to military courts.348
Four Justices concurred.349 They did not take issue with the majority’s
argument that the military commission lacked jurisdiction. Instead the
Justices focused on the claim that Congress, if it had wanted to, could have
authorized the use of military commissions.350 Since Congress had not
authorized the use of military commissions, they agreed with the Court’s
outcome.351 Implicitly, five Justices of the Milligan majority rejected
Lincoln’s argument that military detention could extend to those well
behind the front lines who aided the rebellion or sought to interfere with the
war effort. The Majority also rejected any claim that the Constitution did
not operate during the Civil War.352 “The Constitution,” the majority
declared, “is a law for rulers and people, equally in war and in peace, and
covers with the shield of its protection all classes of men, at all times, and
under all circumstances.”353
While Milligan is cited today as a ringing endorsement of civil liberties
in wartime, it was heavily criticized at the time and sparked a remarkable
344. No good biography exists of Milligan, but there are several helpful articles about him and
his case. See, e.g., FRANK L. KLEMENT, The Indianapolis Treason Trials and Ex Parte Milligan, in
AMERICAN POLITICAL TRIALS 97, 110 (Michael R. Belknap ed., 1994) (detailing Milligan’s time in
prison and the events leading to his release); Allan Nevins, The Case of the Copperhead Conspirator, in
QUARRELS THAT HAVE SHAPED THE CONSTITUTION 101, 114–15 (John A. Garraty ed., 1962)
(explaining how President Johnson commuted Milligan’s sentence to life in prison); Kenneth M.
Stampp, The Milligan Case and the Election of 1864 in Indiana, 31 MISS. VALLEY HIST. REV. 41, 56–57
(1944) (describing Milligan’s death sentence and noting that Johnson commuted it in 1865). One short
book is DARWIN KELLEY, MILLIGAN’S FIGHT AGAINST LINCOLN (1973).
345. Milligan, 71 U.S. at 107.
346. Id. at 131.
347. Id. at 7, 121–22.
348. Id. at 127.
349. Id. at 132 (Chase, C.J. concurring).
350. Id. at 136.
351. Id. at 141.
352. Id. at 120 (majority opinion).
353. Id. at 120–21.
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political response. Congress’s authority was not presented in the Milligan
case, but the majority’s desire to reach this question and to answer it in such
broad terms plunged the Court into the maelstrom of Reconstruction
politics. Milligan suggested that any continuation of military occupation in
the South was unconstitutional, and signaled that Republicans would have
to count the judiciary among their opponents.
“In the conflict of principle thus evoked, the States which sustained the
cause of the Union will recognize an old foe with a new face,” wrote the
New York Times.354 “The Supreme Court, we regret to find, throws the great
weight of its influence into the scale of those who assailed the Union and
step after step impugned the constitutionality of nearly everything that was
done to uphold it.”355 Comparing Milligan to Dred Scott, Harper’s Weekly
declared that “it is not a judicial opinion; it is a political act.”356 The New
York Herald raised the idea of reforming the Court: “a reconstruction of the
Supreme Court, adapted to the paramount decisions of the war, looms up
into bold relief, on a question of vital importance.”357
Congress was determined to prevent the Court from ending
Reconstruction prematurely. Radical Republicans were already at war with
President Johnson, who wanted a quick readmission of the Southern states
into the Union.358 Johnson vetoed bills to deepen Reconstruction policies,
and quoted Milligan to support his claim that continued occupation of the
South violated the Constitution.359 Colonel William McCardle, a Vicksburg
newspaper editor held in military detention for virulent denunciation of
Union authorities, challenged the constitutionality of Reconstruction.360 In
1868, to forestall McCardle’s challenge, Congress enacted legislation
eliminating the Court’s jurisdiction to hear appeals from military courts in
the South.361 Only after Johnson’s acquittal on impeachment charges, and
354. 2 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY, 1836–1918, at
429 (rev. ed. 1947) (quoting Trials by Military Commissions—The Supreme Court Decision, N.Y.
TIMES, Jan. 3, 1867, at 4).
355. Id. (quoting Trials by Military Commissions, supra note 354, at 4).
356. Id. at 432 (quoting The New Dred Scott, HARPER’S WKLY., Jan. 19, 1867, at 43).
357. Id. at 431 (quoting Editorial, The Late Decision of the Supreme Court on Military Trials
During the War, N.Y. HERALD, Dec. 20, 1966, at 4).
358. See PAUL BERGERON, ANDREW JOHNSON’S CIVIL WAR AND RECONSTRUCTION 76–77
(2011) (explaining how Radical Republicans disagreed with Johnson’s Reconstruction policies); ERIC L.
MCKITRICK, ANDREW JOHNSON AND RECONSTRUCTION 3, 53 (1960) (explaining how the Radical
Republicans were energized by a fight with Johnson over the terms of Reconstruction).
359. Andrew Johnson, Veto Message, (Mar. 2, 1867), in 6 Richardson, supra note 13, at 498,
504.
360. See William W. Van Alstyne, A Critical Guide to Ex parte McCardle, 15 ARIZ. L. REV.
229, 236 (1973).
361. An Act amendatory of “An Act to Amend an Act entitled ‘An Act relating to Habeas
Corpus, and regulating judicial Proceedings in certain Cases,’” ch. 17, 14 Stat. 385 (1867); see also 2
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Grant’s election to the Presidency, did the Court announce in 1869 that it
accepted the reduction of its jurisdiction and would not reach the merits of
the McCardle petition.362 Thus, Milligan became the motivating factor that
led to the only clear example of congressional jurisdiction-stripping in the
Court’s history.363 Milligan may be remembered as the Court’s resistance to
Lincoln’s wartime measures, but it also embroiled the Court in national
politics of the highest order, and ultimately it led to a severe counterstroke
against judicial review.
While Lincoln claimed extraordinary authority over civil liberties
during the Civil War, he exercised it in a restrained manner. After
examining the records of detentions and military trials, Neely concludes
that more civilians were detained than was commonly thought, but that
most came from border states near the scene of fighting or were citizens of
the Confederacy.364 Only a small percentage of the total number of Union
prisoners could be considered political prisoners.365 While hostilities were
ongoing, no branch of government opposed Lincoln’s internal security
program. His administration cooperated at times with Congress’s
suspension of the writ, but at times it continued to follow military policy.366
Even in its decision after the war, the Supreme Court did not reverse
President Lincoln’s suspension of habeas corpus or the extension of martial
law to the areas under occupation or threat of attack. The Court’s decision
left unclear whether its demands for the protection of citizens detained
beyond the battlefield would apply to those actively associated with the
enemy.
Historians and political scientists have long criticized Lincoln for going
too far in limiting civil liberties, but no one doubts that he did so with the
best of intentions, in unprecedented circumstances. Americans were
fighting Americans and the mobilization of the home front held the key to
victory. It is easy today, with the benefit of hindsight, to argue that Lincoln
WARREN, supra note 354, at 427–28 (describing Republican reaction); Ex parte McCardle, 74 U.S. (7
Wall.) 506, 514 (1868) (upholding constitutionality of repeal of appellate jurisdiction over military
commissions).
362. McCardle, 74 U.S. at 515.
363. See Stanley I. Kutler, Ex Parte McCardle: Judicial Impotency? The Supreme Court and
Reconstruction Reconsidered, 72 AM. HIST. REV. 835, 839–43 (1967) (chronicling how McCardle,
which invoked Milligan, led Congress to repeal a portion of the Habeas Corpus Act of 1867); see also
Van Alstyne, supra note 360, at 232 (pronouncing McCardle the “leading case” on Congress’s power to
strip jurisdiction from the Supreme Court under the Exceptions Clause).
364. NEELY, supra note 18, at 137–38, 168.
365. See id. at 134, 137 (“No military prison was reserved exclusively for civilian prisoners, and
most held only small numbers of civilians compared to prisoners of war. . . . [M]ost [arrests] had nothing
to do with dissent or political opposition in the loyal states above the border states.”).
366. Id. 202–03.
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went too far.367 But it is also impossible to know, either at the time or even
now, whether his policies kept the North committed and prevented Southern
successes behind the lines. Lincoln’s approach to civil liberties may well
have been an indispensable part of his overall strategy to win the Civil War,
though one that came with a high price.
III. RECONSTRUCTION
The Civil War’s hybrid nature as a rebellion on American territory and
as a traditional war colored a third major arena of presidential action—
Reconstruction. If the Confederacy were considered an enemy nation, the
laws of war permitted the occupation of recaptured territory. But if the
states had never left the Union, as Lincoln had argued from the beginning,
they could have claimed an immediate restoration of their authority. They
could again pass their own laws and run their own courts and police. If the
defeated states were automatically restored to the Union, they could
exercise their rights in the federal government, including the election of
Senators and Representatives. In the unprecedented circumstances of the
Civil War, there were no rules for the readmission of rebellious states to the
Union or how much authority the national government could exercise in
occupied territory.368
A. The Road to Reconstruction: Military Government During War
Lincoln did not hesitate to take the initiative in setting occupation and
reconstruction policy. He believed that the Constitution concentrated in the
Commander-in-Chief the rights of a nation at war, and one aspect of the
nation’s powers under the laws of war was the right to occupy captured
territory.369 The conflict’s nature as an insurrection gave him even greater
powers. The key feature of the laws of war is to retain as much of the
normal civilian governmental structure as is consistent with military
367. See, e.g., GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 105 (2004)
(describing civil libertarian objections).
368. For discussions of the law and policy of Reconstruction, see KENNETH M. STAMPP, THE
ERA OF RECONSTRUCTION, 1865–1877 (1965); BELZ, supra note 18; MICHAEL LES BENEDICT, A
COMPROMISE OF PRINCIPLE: CONGRESSIONAL REPUBLICANS AND RECONSTRUCTION, 1863–1869
(1974); HYMAN, supra note 18; and ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED
REVOLUTION, 1863–1877 (1988).
369. See Lincoln, First Inaugural Address, supra note 63, at 218 (proclaiming the power “to
hold, occupy, and possess the property” belonging to the government); Letter from Abraham Lincoln to
James C. Conkling, supra note 219, at 497 (arguing that in times of war the Constitution invests in the
Commander-in-Chief the power to take property, “both of enemies and friends”); EYAL BENVENISTI,
THE INTERNATIONAL LAW OF OCCUPATION 7 (1993).
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47
necessity.370 An occupying military may take measures to prevent attacks
on its soldiers, but it generally cannot change civil or criminal laws
wholesale, and it generally leaves civilian government and its officials in
place.371 But since the United States was waging war to restore its authority
over rebellious States, occupation of Southern territory inevitably involved
change not just of local officials, but of the institutions of government.
When territory in Tennessee and Louisiana fell under Northern control
in 1862, Lincoln appointed military governors to establish occupation
governments.372 As military governor of Tennessee, Andrew Johnson
removed confederate officials, appointed civilian officers, and arrested
confederates who were elected to office.373 Elections were not held, and
Tennessee did not exercise the political rights of a state within the federal
system.374 In New Orleans, General Benjamin Butler delivered justice by
military commissions, which included executing a man who had torn down
the Union flag. He ran the city by decree, such as the infamous “Women’s
Order,” which declared that any woman who showed disrespect to a Union
soldier would be considered “as a woman of the town plying her
avocation.”375
Military commanders ordered arrests without warrant or criminal trial;
the seizure of land and property for military use; the closure of banks,
churches and businesses; and the suppression of newspapers or political
meetings deemed to be disloyal.376 Military courts were established that
enforced law and order among civilians, without effective appeal to federal
courts—an arrangement upheld by the Supreme Court after the war, as was
the whole system of occupation government.377 The basic rule of occupation
government was the will of the military commander, checked only by his
superior officers and ultimately the President. As the Supreme Court
observed when it reached cases challenging military government, the
occupation was “a military duty, to be performed by the President as
commander-in-chief, and intrusted as such with the direction of the military
force by which the occupation was held.”378
370. BENVENISTI, supra note 369, at 7.
371. See id.
372. See FONER, supra note 368, at 43–48 (describing the military occupation of Tennessee and
Louisiana, and the military’s role in crafting governments).
373. Id. at 43.
374. Id. at 44–45.
375. PALUDAN, supra note 1, at 235 (internal quotation marks omitted).
376. RANDALL, supra note 18, at 225–26.
377. Cushing v. Durant (The Grapeshot), 76 U.S. (9 Wall.) 129, 131–32 (1869); United States v.
Diekelman, 92 U.S. 520, 524, 527 (1875).
378. The Grapeshot, 76 U.S. at 132.
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Congress never played a successful role in the operation of the military
governments. In 1862, out of discontent with Lincoln’s reversal of General
Hunter’s emancipation order, it considered legislation to treat the Southern
states as territories subject to its regulation, but Congress eventually chose
to accept Lincoln’s policies and put the legislation aside.379 On the question
of the readmission of recaptured states, however, it held a critical
constitutional power—that of judging whether to seat members of
Congress.380 Congress, not Lincoln, would control whether any
reconstituted Southern state could send Senators and Representatives.
B. Radical Republicans Attempt Congressional Efforts to Shape
Reconstruction
As the war wore on, Radical Republicans in Congress were determined
to set a high bar before restoring rebel states to the Union. Lincoln wanted
an easier path to peace. His initial promise of returning the Union as it was
suggested that he would be open to allowing states to return with slavery
intact, and for a time, he pursued a similar policy in the loyal border
states.381 Congressional leaders wanted a greater role in Reconstruction and
a more radical reshaping of Southern society, which included the abolition
of slavery.382 In 1864, Congress refused to seat representatives sent by
Louisiana, but at the same time identified no clear path in the war’s first
years on the readmission of the states of the Confederacy.383
Lincoln seized the initiative in his 1863 annual message, delivered less
than a month after the Gettysburg Address. He rejected the idea that a
Confederate state would be entitled to automatic readmission to the Union
upon occupation. “An attempt to guaranty and protect a revived State
government, constructed in whole, or in preponderating part, from the very
element against whose hostility and violence it is to be protected,” Lincoln
observed, “is simply absurd.”384 While setting the terms of political debate,
the President paid careful attention to constitutional details.
Lincoln based his right to set the terms for Reconstruction on his
plenary power to grant pardons, and the Constitution’s provision
379. PALUDAN, supra note 1, at 244.
380. David P. Currie, The Civil War Congress, 73 U. CHI. L. REV. 1131, 1219–22 (2006).
381. See FONER, supra note 368, at 35–43 (discussing how Lincoln deferred to the local politics
of the slave states who had remained loyal to the union).
382. E.g., id. at 228–30.
383. Currie, supra note 380, at 1219–22.
384. Abraham Lincoln, Annual Message to Congress (Dec. 8, 1863), in LINCOLN, SPEECHES
AND WRITINGS, supra note 1, at 538, 552.
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guaranteeing to every state a “republican form of government.”385 He
proposed a plan that required at least 10% of a state’s voters in the 1860
election to take an oath of loyalty and obedience to the Emancipation
Proclamation and Congress’s laws against slavery.386 Lincoln excluded
from chances of a pardon all ranking Confederate civilian and military
officials, any federal Congressmen or officers who joined the rebellion, or
any who had not treated black soldiers as prisoners of war.387 When a
former Confederate state reached the 10% requirement, it would be
permitted to form a government.388 In exchange, the reconstructed states
would retain their prewar names, boundaries, constitutions, and laws, so
long as they accepted the end of slavery.389 While Lincoln set out the first
plan for Reconstruction, he recognized that only Congress could decide
whether to seat the elected Congressmen of the reconstructed states.390
Lincoln’s plan set relatively easy terms because he wanted to get
Louisiana back into the Union as quickly as possible. He hoped Louisiana’s
example would weaken the resolve of other Southern states and end the
war.391 Republican Congressmen, however, worried that allowing the
Southern states to return too soon would lead to the oppression of the black
freedmen.392 They drafted an alternative, the Wade-Davis bill, which
required a state to write a new constitution ending slavery and providing
protections to the former slaves.393 Only those who took an oath of past and
future loyalty—known as the “ironclad” oath394—could elect delegates to
the constitutional convention, and it required more than 50%, rather than
Lincoln’s 10%, of the 1860 voters to take the oath before the state could
385. Abraham Lincoln, Proclamation of Amnesty and Reconstruction (Dec. 8, 1863), in
LINCOLN, SPEECHES AND WRITINGS, supra note 1, at 555, 557 (quoting U.S. CONST. art. IV, § 4); see id.
at 556–57 (setting the terms of reconstruction by proclaiming that states shall be guaranteed protections
of the Constitution and a republican form of government if 10% of the state voting population took the
oath to “abide by and faithfully support” all acts of Congress and “all proclamations of the President
made during the existing rebellion having reference to slaves”).
386. Id. at 556.
387. Id.
388. Id. at 556–57.
389. Id. at 557.
390. Id.
391. PEYTON MCCRARY, ABRAHAM LINCOLN AND RECONSTRUCTION: THE LOUISIANA
EXPERIMENT 18 (1978) (describing Lincoln’s moderate reconstruction plan and indicating that he
thought it most likely to succeed in Louisiana); WILLIAM C. HARRIS, WITH CHARITY FOR ALL: LINCOLN
AND THE RESTORATION OF THE UNION 145 (1997).
392. HERMAN BELZ, A NEW BIRTH OF FREEDOM: THE REPUBLICAN PARTY AND FREEDMEN’S
RIGHTS, 1861–1866, at 51–53, 64 (1976).
393. Lincoln used a pocket veto to block the bill. Abraham Lincoln, Proclamation (July 8,
1864), in 6 Richardson, supra note 13, at 222–23. The bill is printed as an appendix to the President's
veto message. See id. at 223–26.
394. MCPHERSON, supra note 18, at 712 (internal quotation marks omitted).
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elect a government.395 Confederate officeholders and members of the
Confederate armed forces could not vote. The bill gave federal officials and
judges authority to override state laws that attempted to continue
involuntary servitude.396 Reconstruction under Congress’s plan would take
longer and require the federal government to play a far more intrusive role
in state politics.
As casualties increased in the summer of 1864, Republicans in
Congress believed that more, rather than fewer, radical measures were
needed. Though he had taken the position that the veto should not be used
over policy disagreements, Lincoln resorted to a pocket veto in July 1864 to
reject the Wade-Davis bill.397 Because Congress had submitted the bill at
the end of its session, Lincoln’s veto gave Congress no chance to override.
Lincoln considered Wade-Davis to be at odds with his theory of the Civil
War by treating the Confederate states as if they had left the Union during
the rebellion.398 Wade-Davis, he wrote in an unusual veto message, would
have set aside the new constitutions that had been adopted by Arkansas and
Louisiana.399 Nor could Congress ban slavery in the states without a
constitutional amendment. When Republican Senator Zachariah Chandler
of Michigan responded, at the signing of the other bills passed during the
congressional session, that Lincoln had already banned slavery, the
President answered: “I conceive that I may in an emergency do things on
military grounds which cannot be done constitutionally by Congress.”400
Above all, Lincoln sought flexibility in Reconstruction policy.401 He was
willing to accept the restoration of any state that met Wade-Davis’s
standards, but he also kept his own approach, which allowed Southern
states to reassume their political rights under more lenient standards.402
Lincoln’s fellow Republicans did not let his pocket veto go
unchallenged. The authors of the bill, Senator Benjamin Wade and
Congressman Henry Davis, issued a “manifesto” in the New York Times
attacking Lincoln for his “grave Executive usurpation.”403 Congress, not the
395. Lincoln, Proclamation, supra note 393, at 224.
396. Id. at 225.
397. Id. at 222–23.
398. DONALD, LINCOLN, supra note 18, at 511.
399. Lincoln, Proclamation, supra note 393, at 222–23.
400. DONALD, LINCOLN, supra note 18, at 511 (internal quotation marks omitted).
401. Id. (noting that Lincoln rejected Wade-Davis because of its inflexible approach to
Reconstruction).
402. Id.
403. B.F. Wade & H. Winter Davis, The War Upon the President.: Manifesto of Ben. Wade and
H. Winter Davis Against the President’s Proclamation, N.Y. TIMES, Aug. 9, 1864,
http://www.nytimes.com/1864/08/09/news/war-upon-president-manifesto-ben-wade-h-winter-davisagainst-president-s.html.
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President, controlled the restoration of the Union.404 The President’s veto to
protect his Reconstruction policies violated the separation of powers.405 “A
more studied outrage on the legislative authority of the people has never
been perpetrated,” they claimed.406 In words not much different from those
of the Democrats who had long accused Lincoln of dictatorship, they
portrayed his veto as “a blow . . . at the principles of republican
government” and declared that “the authority of Congress is paramount, and
must be respected.”407 The President “must confine himself to his executive
duties—to obey and execute, not make the laws.”408
Coming a few months before the 1864 election, the Wade-Davis
manifesto gave heart to Lincoln’s opponents. Democrats praised the two
Republicans “found willing at last to resent the encroachments of the
executive on the authority of Congress.”409 It also inspired Republicans who
wanted to replace Lincoln.410 Their electoral fortunes that summer had
waned with Union failures to capture Richmond and Atlanta.411 The future
turned so bleak that Lincoln drafted a “Memorandum on Probable Failure
of Re-election” for his files.412 Lincoln believed it “exceedingly probable
that this Administration will not be re-elected” and declared his duty to “cooperate with the President elect, as to save the Union between the election
and the inauguration.”413
Sherman’s capture of Atlanta on September 4, 1864, marked a
turnabout in Lincoln’s fortunes. Democrats helped by nominating General
McClellan as their presidential candidate on a platform that sought a
“cessation of hostilities” because of “four years of failure to restore the
Union by the experiment of war.”414 Boosted by the fall of Atlanta, Lincoln
404. Id.
405. See id. (“That judgment of Congress which the President defies was the exercise of an
authority exclusively invested in Congress by the Constitution to determine what is the established
government in a State, and in its own nature and by the highest judicial authority binding on all other
departments of the Government.” (emphasis added)).
406. Id.
407. Id.
408. Id.
409. DONALD, LINCOLN, supra note 18, at 524.
410. Id. at 524–25 (noting that radicals met on August 18, just thirteen days after the Manifesto
was published, to plan the replacement of Lincoln).
411. See id. at 513–14, 524; Noah Brooks, The Tide of Battle, May 13, 1864, in LINCOLN
OBSERVED: CIVIL WAR DISPATCHES OF NOAH BROOKS 109, 109 (Michael Burlingame ed., 1998)
(noting the public’s discontent that Richmond had not yet been taken).
412. Abraham Lincoln, Memorandum on Probable Failure of Re-election (Aug. 23, 1864), in
LINCOLN, SPEECHES AND WRITINGS, supra note 1, at 624, 624.
413. Id.
414. Aaron F. Perry, Speech to the National Union Association at Mozart Hall (Sept. 20, 1864),
available at http://archive.org/details/speechofaaronfpe00perr.
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unified his party by removing his Postmaster General, who was hated by the
Radical Republicans, and by announcing that he would appoint Chase,
whom he had forced to resign as Treasury Secretary for leading the
Republican opposition, to the position of Chief Justice.415
While Lincoln exerted all his energies to ensure his reelection, he never
questioned the importance of holding the elections themselves. “We can not
have free government without elections,” he told serenaders after his
reelection.416 “[I]f the rebellion could force us to forego, or postpone a
national election, it might fairly claim to have already conquered and ruined
us.”417 Lincoln won an overwhelming victory: 55% of the vote and 212
electoral votes compared to the 21 for McClellan.418 His overall share of the
popular vote had grown by more than 340,000 votes, and Republicans
increased their control of the Senate to 42–10 and the House to 149–42.419
To Lincoln, the election answered the “grave question whether any
government, not too strong for the liberties of its people, can be strong
enough to maintain its own existence, in great emergencies.”420
C. Reelection: Congress and Lincoln Spar over the Goals of Reconstruction
Returned to office with a more secure electoral base, Lincoln pursued
Reconstruction anew. As David Donald has observed, Lincoln and
Congress had very different goals in mind. Lincoln wanted to use
Reconstruction to end the fighting.421 He believed that quickly forming
loyal governments in recaptured territory might encourage other
Confederate states to rejoin the Union.422 Radical Republicans, by contrast,
were concerned about a host of other issues, such as the continuing strength
of the white elites and the economic and political rights of the black
freedmen.423 Reconstruction involved the intersection of executive and
legislative powers: The President had the authority as Commander-in-Chief
to govern occupied enemy territory and the executive power to pardon
rebels; Congress controlled the seating of members of Congress, the rules
415. DONALD, LINCOLN, supra note 18, at 550–53.
416. Abraham Lincoln, Response to Serenade (Nov. 10, 1864), in LINCOLN, SPEECHES AND
WRITINGS, supra note 1, at 641, 641.
417. Id.
418. Historical Election Results, ELECTORAL COLLEGE BOX SCORES, 1789–1996,
http://www.archives.gov/federal-register/electoral-college/scores.html#1864 (last visited Nov. 13,
2013).
419. PALUDAN, supra note 1, at 290.
420. Lincoln, Response to Serenade, supra note 416, at 641 (emphasis in original).
421. DONALD, LINCOLN, supra note 18, at 561.
422. Id.
423. Id.
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53
governing the territories, and the admission of states. Lincoln wanted a
quick restoration of the Union; Congress wanted to remake Southern
society first.424
After his election, Lincoln threatened to veto any congressional effort
to deny admission to Louisiana, which had been reconstructed according to
his 10% plan. While congressional Republicans in 1864 had passed the
Wade-Davis bill, in 1865 they could not override Lincoln’s approach.
When he first came to the legislature, “this was a Government of law,”
Congressman Davis exclaimed.425 “I have lived to see it a Government of
personal will.”426 Nevertheless, in a demonstration of the checks that
Congress still possessed over executive war policy, Radical Republicans
filibustered a Lincoln-supported proposal to admit Louisiana in the spring
of 1865.427 Lincoln had recognized Congress’s power in his December 1864
State of the Union message. Some Reconstruction questions, he admitted,
“would be, beyond the Executive power to adjust; as, for instance, the
admission of members into Congress, and whatever might require the
appropriation of money.”428
It was in this political setting that Lincoln delivered one of his greatest
speeches, the Second Inaugural Address. He would not venture a prediction
for the end of the war, but held “high hope for the future.”429 Lincoln’s
main purpose was to argue not just for reconstruction, but reconciliation. It
is true, he said, that insurgents had sought to dismember the Union to
preserve slavery, which the government could not permit.430 “Both parties
deprecated war; but one of them would make war rather than let the nation
survive; and the other would accept war rather than let it perish. And the
war came.”431
Lincoln avoided placing the blame on individuals or on states. “Neither
party expected for the war, the magnitude, or the duration, which it has
already attained. Neither anticipated that the cause of the conflict might
cease with, or even before, the conflict itself should cease.”432 Both sides
were guilty of miscalculation. “Each looked for an easier triumph, and a
424. See generally FONER, supra note 368 (exemplifying the academic consensus that views
Reconstruction as a noble effort to expand the civil rights of black freemen in the South).
425. DONALD, LINCOLN, supra note 18, at 562 (internal quotation marks omitted).
426. Id. (internal quotation marks omitted).
427. TED TUNNELL, CRUCIBLE OF RECONSTRUCTION: WAR, RADICALISM, AND RACE IN
LOUISIANA, 1862–1877, at 81 (1984).
428. Lincoln, Annual Message to Congress, supra note 240, at 660.
429. Abraham Lincoln, Second Inaugural Address (Mar. 4, 1865), in LINCOLN, SPEECHES AND
WRITINGS, supra note 1, at 686, 686.
430. Id.
431. Id. (emphasis in original).
432. Id. (emphasis in original).
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result less fundamental and astounding.”433 He emphasized their common
heritage too. “Both read the same Bible, and pray to the same God; and
each invokes His aid against the other.”434 While Lincoln remarked that
owning slaves was not his idea of being a good Christian—“[i]t may seem
strange that any men should dare to ask a just God’s assistance in wringing
their bread from the sweat of other men’s faces”—even there he insisted,
“let us judge not that we be not judged.”435
Lincoln was not interested in assigning responsibility for the amazing
costs of the war. He referred to the war almost as an act of God: “All
dreaded it—all sought to avert it.”436 He saw it as God’s punishment of the
nation as a whole for the sin of human slavery. 437 “He gives to both North
and South, this terrible war, as the woe due to those by whom the offence
came[.]”438 No one wanted the war to go on. “Fondly do we hope—
fervently do we pray—that this mighty scourge of war may speedily pass
away.”439 But it would be God, not man, who would decide how long the
war must continue to atone for slavery.440
If the Civil War was God’s judgment upon a sinning nation,
Reconstruction should have pursued healing, not retribution. Lincoln’s final
paragraph is among the most eloquent in American public speeches, and it
is a plea for mercy and reconciliation:
With malice toward none; with charity for all; with firmness in
the right, as God gives us to see the right, let us strive on to finish
the work we are in; to bind up the nation’s wounds; to care for
him who shall have borne the battle, and for his widow, and his
orphan—to do all which may achieve and cherish a just, and a
lasting peace, among ourselves, and with all nations.441
While the Second Inaugural Address is widely praised for its eloquence, it
also explained Lincoln’s reasons for a more lenient Reconstruction.
As the Union armies moved closer to victory, Lincoln continued to
signal flexibility on his reconstruction plans. Sherman had captured
Savannah by Christmas, and Columbia and Charleston in early 1865, while
Grant’s steady pressure had forced the Confederate government to abandon
433.
434.
435.
436.
437.
438.
439.
440.
441.
Id.
Id. at 687.
Id.
Id. at 686.
Id. at 687.
Id.
Id.
Id.
Id.
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55
Richmond. Lincoln held the upper hand. He was the first President since
Andrew Jackson to be reelected, the head of a party that had just won
stunning majorities in Congress, with a cabinet staffed with political allies.
Nevertheless, as the end of the war approached, his constitutional authority
would weaken because the reach of his Commander-in-Chief power would
narrow.
After news of Lee’s surrender reached Washington, Lincoln used the
occasion of an impromptu celebration outside the White House to give a
speech on Reconstruction. After giving thanks to God for General Grant’s
victory, Lincoln declared that the “re-inauguration of the national authority”
in the South would be “fraught with great difficulty” and that there was
great division in the North about the right policy.442 He pled again for the
quick admission of Louisiana, but in a new sign of flexibility he declared
that he would drop his public demands for it: “But, as bad promises are
better broken than kept,” Lincoln said, “I shall treat this as a bad promise,
and break it, whenever I shall be convinced that keeping it is adverse to the
public interest.”443 Lincoln said he had yet to be convinced, however.444
This time, Lincoln did not want to open up the difficult constitutional
issues involved. He observed that he had “purposely forborne any public
expression upon” the question of whether the Southern states had ever left
the Union as a matter of constitutional law.445 Deciding that question,
Lincoln now thought, would only distract from the more important goal of
restoring those states into that “proper practical relation[]” with the
Union.446 It would be easier to embark on a quick Reconstruction without
deciding whether the Southern states had actually seceded. “Finding
themselves safely at home, it would be utterly immaterial whether they had
ever been abroad.”447
Louisiana had met Lincoln’s terms and it had adopted a new
constitution abolishing slavery.448 Lincoln admitted that he wished the
reconstructed Southern governments had broader popular support and had
extended the franchise to the “very intelligent” blacks or those who had
served in the war; he clearly hoped that the states would grant the freedmen
their political and civil rights without the use of federal power.449 But the
442. Abraham Lincoln, Speech on Reconstruction (Apr. 11, 1865), in LINCOLN, SPEECHES AND
WRITINGS, supra note 1, at 697, 697.
443. Id. at 698.
444. Id.
445. Id. at 699 (emphasis in original).
446. Id.
447. Id.
448. Id. at 700.
449. Id. at 699–700.
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question was whether Louisiana, and the states to follow her, would be
restored to the Union “sooner by sustaining, or by discarding her new State
Government[.]”450 It would be better to get a start immediately by nurturing
the new state governments into the Union than to ruin the loyal effort in
Louisiana. Lincoln also observed that quickly readmitting Louisiana and
other states might help the Thirteenth Amendment reach the three-quarters
vote of the states required for ratification.451
Lincoln closed with an offer of negotiation to the Radical Republicans.
He declared that Reconstruction was so “new and unprecedented” that “no
exclusive, and inflexible plan can safely be prescribed as to details and
colatterals [sic].”452 Radicals in Congress reacted negatively to Lincoln’s
failure to protect the full political and civil rights of the freedman, even
though his April 11 speech made him the first American President to call
for black suffrage of any kind.453 Pressing forward with plans for a quick
Reconstruction, Lincoln decided at a cabinet meeting on April 14 (with
General Grant in attendance) to set in motion plans for military governors
in the Southern states, who would exercise martial law until loyal civilian
governments could be established.454 Lincoln planned to set Reconstruction
on an inalterable course before Congress could act. “If we were wise and
discreet,” Lincoln said at the cabinet meeting, “we should reanimate the
States and get their governments in successful operation, with order
prevailing and the Union reestablished, before Congress came together in
December.”455 Lincoln believed that several members of Congress were
simply so “impracticable” or full of “hate and vindictiveness” toward the
South that the executive branch would accomplish more good without
legislative participation.456
John Wilkes Booth assassinated Lincoln at Ford’s Theatre that very
night. It is impossible to know whether Lincoln’s second term would have
brought about a different kind of Reconstruction than the one that followed,
but it seems clear that Lincoln intended that the Executive would take the
lead through its constitutional powers over the making of war and peace.
With hostilities winding down, Lincoln wanted to create a state of affairs in
the South that Congress would be unable to undo. He was following the
same strategy toward Congress at the end of the war that he had adopted at
450.
451.
452.
453.
454.
455.
456.
Id. at 700 (emphasis in original).
Id. at 700–01.
Id. at 701.
DONALD, LINCOLN, supra note 18, at 584–85.
Id. at 590.
Id. at 592 (internal quotation marks omitted).
Id. (internal quotation marks omitted).
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57
its start—he would take swift action under his Commander-in-Chief and
Chief Executive powers while the Legislature remained out of session.
Lincoln wanted Congress’s cooperation, and he openly acknowledged
that its power over the seating of its members exercised a check on a state’s
restoration to the Union. But he would not go as far as the Radicals, nor did
he agree with Democrats who were content to allow the dominance of the
Southern economic and political systems. The Civil War had not just
restored the Union—it had ended slavery. Lincoln wanted the freedmen to
have equal rights, but he sought to achieve them through a restoration of the
state governments and the traditional principles of constitutional
government.
IV. ANDREW JOHNSON AND THE POST-WAR PRESIDENCY
Lincoln was neither a dictator nor an unprincipled partisan. His
unprecedented action to preserve the Union exploited the broadest reaches
of the Constitution’s grant of the Chief-Executive and Commander-in-Chief
powers. Once war had begun, Lincoln took control of all measures
necessary to subdue the enemy; including the definition of war aims and
strategy, supervision of military operations, detention of enemy prisoners,
and management of the occupation.457 He freed the slaves, but only those in
the South, because his powers were limited to the battlefield. He took swift
action, normally within Congress’s domain, but only because of the
pressure of emergency. After the first months of the war, Lincoln never
again usurped Congress’s powers over the raising or funding of the
military. He was not afraid of a contest with Congress, particularly over
Reconstruction, but the Civil War witnessed far more cooperation between
the executive and legislative branches than is commonly thought. But when
Lincoln believed Congress to be wrong, he did not hesitate to draw upon
the constitutional powers of his own office to follow his best judgment.
A. Lincoln’s Lessons
Lincoln’s administration provides valuable lessons on the nature of
civil liberties in wartime. Lincoln undeniably took a tough posture toward
citizens suspected of collaborating with the Confederacy and ordered the
restriction of peacetime civil liberties, especially the rights of free speech
and of habeas corpus.458 No reduction in constitutional rights is desirable,
standing alone, but the measures were part of a systematic mobilization to
457. See supra Part III.
458. See supra Part III.A–B.
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win the most dangerous war in our nation’s history. They had costs, but
they also bore benefits for a war effort that eventually defeated the South
and left behind no permanent diminution of individual liberties. If anything,
the Civil War was followed by the passage of the Reconstruction
Amendments and the freeing of the slaves, the expansion of the franchise,
and the constitutional guarantee of due process and equal protection rights
against the states. To demand that Lincoln should have been more sensitive
to civil liberties is to impose the ex-post standards of peacetime on
decisions made under the pressures of wartime.
Lincoln’s greatness in preserving the Union depended crucially on his
discovery of the broad executive powers inherent in Article II for use during
war or emergency. But not every President is a Lincoln, and not every crisis
rises to the level of the Civil War. Once a crisis passes, presidential powers
should recede, and if there is no real emergency in the first place, Congress
should generally have the upper hand. While great Presidents have been
ones who have held a broad vision of the independence and powers of their
office, every President who uses his constitutional powers does not
necessarily rise to greatness. Presidents may so overstep their political
bounds in the use of their constitutional powers that they trigger a reaction
by the other branches. Either the President or Congress can succeed in
producing a stalemate, which may or may not yield the best result.
B. Andrew Johnson and the Limits of Executive Power
Lincoln’s Vice President, Andrew Johnson, shows the perils of
exercising constitutional powers to bring on, rather than resolve, a crisis. A
Tennessee Democrat, Johnson held sharply different views on
Reconstruction than the Radical Republicans.459 Like Lincoln, he favored a
quick restoration of the South to its normal status as part of the political
community.460 Southerners only had to pledge an oath of loyalty to the
Union, hold constitutional conventions, ratify the Thirteenth Amendment,
repudiate the public debts borrowed by the Confederate government, and
repeal secession.461 Under Johnson’s plan, many Republican Congressmen
believed the Southern social and economic system would remain intact.462
Aside from former Confederate government officeholders and military
459.
(1973).
460.
461.
462.
MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON 4, 6
Id. at 6.
Id.
See id. at 7–10 (describing the political climate during Reconstruction).
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officers, who could not receive amnesty, the Southern elites would remain
in charge.463
Congressional Republicans wanted a far more radical reordering of the
South. They wanted to grant to black freedmen, whose fate did not figure in
Johnson’s scheme, equality with whites in the economy, government, and
society.464 They passed the Freedmen Bureau and Civil Rights Acts to
continue economic assistance to the freed slaves and to guarantee their
equal legal rights,465 and proposed the Fourteenth Amendment, which
guaranteed the rights of due process and equal protection against the state
governments.466 Congress had constitutional powers at its disposal that were
the equal, if not greater, than those available to Johnson. While the
President was the Commander-in-Chief over the military forces occupying
the South, only Congress could determine whether Southern states could
reassume their standing as political equals. If the Southern states had
formally left the Union, the Constitution gave only Congress the right to
admit new states.467 If the Confederate states had simply been taken over by
disloyal conspiracies, but had never lost their status as states, Congress
could refuse to seat the Southern Representatives and Senators until the
South properly reconstructed their governments.468
Fundamental disagreement over Reconstruction policy prompted the
battle between the executive and legislative branches after Lincoln’s death.
Johnson vetoed the Freedman and Civil Rights bills for upsetting the proper
balance between the powers of the national and state governments and
urged the Southern states to reject the Fourteenth Amendment.469 He
allowed rebel-dominated governments to exercise civil authority in the
South and assured their leaders that he would push for quick readmission to
the Union.470 Congress was furious. Johnson, who had the unfortunate
combination of a terrible temper, political inflexibility, and a zealot’s
fervor, responded by attacking the Republicans just as angrily as he had
once attacked the rebels.471 Both were traitors, said the President in January
463. See id. at 6. (explaining how these officeholders and military officials could, however, seek
a pardon from Johnson).
464. Id. at 8–12.
465. Id.
466. Id. at 14.
467. U.S. CONST. art. IV. § 3, cl. 1.
468. Luther v. Borden, 48 U.S. (7 How.) 1, 42 (1849); see also AKHIL REED AMAR, AMERICA’S
CONSTITUTION, 370 (2005) (laying out the argument that it was up to Congress to determine if the
Southern states who ceded from the Union were Republican enough to be readmitted to the Union).
469. LES BENEDICT, supra note 459, at 12, 16.
470. See id. at 7 (explaining how Johnson believed that because there was a massive amount of
participation in the new Southern governments, his lenient Reconstruction policy was a success).
471. Id. at 13.
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1866. Southerners stood “for destroying the Government to preserve
slavery,” while Republicans wanted “to break up the Government to destroy
slavery.”472
Johnson joined forces with his old party, the Democrats, in the 1866
midterm elections, but the Republicans prevailed.473 In 1867, Congress
overrode the vetoes of the Freedman and Civil Rights bills and passed a
Reconstruction Act that required the Confederate states to ratify the
Fourteenth Amendment and repeal all racially discriminatory laws.474
Congress further required the Southern states to extend to the freedmen the
equal right to vote.475 A supplementary Reconstruction Act swept away
Johnson’s Reconstruction and ordered new elections and constitutional
conventions.476
Just as Congress blocked Johnson’s policies, Johnson used his
constitutional powers to frustrate Congress. In 1865, he appointed former
rebels as provisional governors in the South, freely granted pardons at their
recommendation, and gave federal offices to other former rebels.477 His
Attorney General ordered federal prosecutors to drop cases that transferred
the lands of rebel officers to the Freedman Bureau for the use of freed
slaves.478 On April 2, 1866, he issued a proclamation that the insurrection
had ended, which implied an end to occupation government.479 As the split
with Congress worsened, Johnson used his power of removal to fire federal
officials, including 1,283 postmasters, to bind the executive branch to his
policies.480
Even implementation of the Reconstruction Acts was up to the
military, which served under the command of the President. Johnson
declared the Reconstruction Acts to be “without precedent and without
authority, in palpable conflict with the plainest provisions of the
Constitution, and utterly destructive to those great principles of liberty and
humanity for which our ancestors on both sides of the Atlantic have shed so
much blood and expended so much treasure.”481 By summer 1867, he had
472. Id. (quoting Andrew Johnson, Speech in Washington (Feb. 22, 1866), in LILLIAN FOSTER,
ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES: HIS LIFE AND SPEECHES 246 (1866)) (internal
quotation marks omitted).
473. Id. at 15–16.
474. Id. at 16–17.
475. Id. at 17.
476. Id. at 18.
477. Id. at 40.
478. Id. at 42–43.
479. Proclamation No. 1, 14 Stat. 811 (1866).
480. LES BENEDICT supra note 459, at 48.
481. Id. at 22 (quoting Andrew Johnson, Veto of the Reconstruction Bill (Mar. 2, 1867), in 6
Richardson, supra note 13, at 500, 500).
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adopted the legal position that the military governors could keep the peace
and punish criminal acts, but not remove Southern officeholders nor enforce
civilian laws such as the Civil Rights Act.482 Johnson had effectively
declared that the military would not execute the Reconstruction Acts. He
had set the nation toward his minimal Reconstruction policy solely by
exercising his powers as Commander-in-Chief.
Angry Republicans believed Johnson was conducting a coup. They
struck back in the February 1867 Tenure of Office Act.483 It prohibited the
President from removing any appointed official while the Senate was in
session until the Senate had confirmed his successor.484 It required the
President to explain the reasons for any removal and required Senate
approval before it became official.485 That summer, Congress enacted a
third Reconstruction Act that restored the authority of the military
governors to enforce civilian laws in the South.486 Johnson waited until the
Senate went on recess and then replaced Stanton as Secretary of War with
General Grant.487 He fired the military governors who had used their
authority under the Reconstruction Acts to remove Southern
officeholders.488 Johnson had completely blocked congressional
Reconstruction. “Yet,” observes Michael Les Benedict, “Johnson had
broken no law; he had limited himself strictly to the exercise of his
constitutional powers.”489
A Congress determined to have its way had one tool left: impeachment.
An initial drive to impeach Johnson in 1867 failed, even after his State of
the Union message declared that he would not enforce the Reconstruction
Acts.490 Congress tried again after Johnson violated the Tenure of Office
Act.491 On February 24, 1868, the House overwhelmingly impeached
Johnson for violating the Act, blocking implementation of the
Reconstruction Acts, and publicly vilifying Congress.492 House managers
482. Id. at 53–54.
483. See Amended Tenure of Office Act, ch. 10, 16 Stat. 6 (1869), reprinted in SELECT
STATUTES AND OTHER DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF THE UNITED STATES 1861–
1898, at 217 (William MacDonald ed., 1903) (limiting the powers of the President).
484. Id. at 218.
485. Id.
486. LES BENEDICT supra note 459, at 17.
487. Id. at 130; William H. Rehnquist, The Impeachment Clause: A Wild Card in the
Constitution, 85 NW. U. L. REV. 903, 915 (1991).
488. LES BENEDICT supra note 459, at 130.
489. Id. at 60.
490. Id. at 22–23; Arthur Schlesinger, Jr., Reflections on Impeachment, 67 GEO. WASH. L. REV.
693, 696 (1999).
491. LES BENEDICT, supra note, at 459 at 23.
492. Rehnquist, supra note 487, at 915.
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argued that the President could not refuse to enforce an Act because he
believed it to be unconstitutional.493 Such power would give him, they
claimed, an absolute veto over all legislation.494 These legal grounds joined
the unstated political motives for impeachment. The Senate refused to
convict by only one vote, however, with seven Republican Senators voting
in favor of Johnson (dramatically retold in John F. Kennedy’s Profiles in
Courage).495
Both the President and Congress had exercised their legitimate
constitutional powers. Johnson had the duty not to enforce laws he believed
to be unconstitutional. He had only followed the example of past Chief
Executives by using his powers of appointment and removal to promote his
policies. Johnson was even correct on the merits. The Tenure of Office Act
violated the Constitution’s grant of the removal power to the President as
part of its vesting of the executive power; the issue resolved in 1789 by the
First Congress.496 Still, Congress had every right to pursue its own vision of
the Constitution, and if it honestly disagreed with the President, it could
remove him through impeachment. While the Senate failed to convict
Johnson, the impeachment process left his administration in shambles and
convinced him to end his confrontational ways. The 1868 elections soon
replaced him with Grant, the hero of the Civil War.
C. Johnson, Lincoln, and the Effective Use of Presidential Power
Johnson’s example modifies the lessons of the Lincoln Presidency in
several important respects. Not all Presidents who press their constitutional
powers to the limits will prevail. Johnson today is ranked as one of the
worst Presidents because of his racist views and his efforts to block a
Reconstruction that sought to guarantee equality for the black freedmen.
Eric Foner views Reconstruction as a shining moment when the South
could have been remade into a racially harmonious and egalitarian
society.497 Johnson set that vision back at least four years, and perhaps a
century, but he could not have been so successful an obstacle without the
same vigorous understanding of presidential power shared by his
predecessor. When it came to the questions about the power of removal and
493. Id. at 914–915.
494. Id. at 109.
495. LES BENEDICT, supra note 459, at 126; JOHN F. KENNEDY, PROFILES IN COURAGE 121
(1955).
496. See Myers v. United States, 272 U.S. 52, 52 (1926) (observing that the Tenure of Office
Act violated the Constitution).
497. FONER, supra note 368, at 602–03.
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non-enforcement of unconstitutional laws, Johnson even had the better of
the constitutional arguments.
Johnson failed not because he misunderstood the scope of his
constitutional powers, but because he misjudged when to use them. It could
be argued that Johnson simply could not overcome congressional
opposition, but what made Johnson’s defeat profound was his effort to use
his constitutional powers in a way that triggered his impeachment. Earlier
Presidents had invoked their constitutional powers during times of great
national challenge and opportunity: establishing a new government;
charting a course between the Napoleonic wars; winning Louisiana and the
Southwest. With Reconstruction, the great emergency that had forced
Lincoln to draw on a robust vision of the Commander-in-Chief role was
waning, not beginning. With complex questions about the nature of
restoring the Union at hand, and with little need for swift and decisive
action, the demand for the unique qualities of the Executive was less
evident. If Johnson had limited his opposition to political measures, without
invoking his constitutional authority, Congress would have prevailed, but
impeachment would have been unnecessary.
Reconstruction reaffirms another lesson about executive power: even at
its greatest height, the other branches always have ample authority of their
own to counter it. Johnson could block congressional policy, but he could
get nowhere on his own. Congress could not choose the generals in charge
of the occupation, but it could grant them broader powers over the Southern
governments. Even if Johnson would not enforce the Reconstruction Acts,
Congress could refuse to readmit the Southern states to the Union. If
Congress disagreed so sharply over the executive branch’s definition and
use of its constitutional powers, it could resort to the ultimate remedy of
impeachment.
Johnson failed to understand that Congress was just as wedded to its
principles as he was to his. Instead of triggering a constitutional
confrontation with no good outcome, he should have cooperated with
Congress. The Reconstruction crisis was not an external one confronting the
government, but one of his own making. The former demands that
Presidents exercise their powers decisively for the benefit of the nation; the
latter does not.
CONCLUSION
Contemporary struggles over executive power are not unprecedented.
As Lincoln’s Presidency demonstrates, they have repeated throughout
American history even during periods of emergency. In fact, the Framers
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designed the Presidency to come to the fore exactly during crises such as
the Civil War. While the Legislature surpasses the Executive in deliberation
with accountability, only the Executive can act with the speed and decision
needed during challenges such as secession and war. A President might err
more often than Congress, as the former makes a decision on his or her own
while the latter benefits from the greater knowledge and reason of many. In
times of national security, emergency, and war, however, the costs of delay
can exceed the expected harms of mistakes.
The contrast between Lincoln and Johnson highlights the functional
differences between the Executive and Legislature. Lincoln’s presidency
puts on vivid display the benefits of the Executive’s advantages in speed
and vigor. As we celebrate the 150th anniversary of the Emancipation
Proclamation this year, we should also recognize that the freeing of the
slaves would not have happened without Lincoln’s startling exercise of
presidential power. At the same time, his successor shows the dangers of
exercising such authority when the circumstances do not demand it.
Reconstruction did not generate the immediate emergency that requires the
President’s constitutional initiative. Johnson failed because he sought to
continue to extend Lincoln’s precedents beyond their natural environment
of war. Today’s struggles over the scope of presidential power raise some
of the same questions—is the United States in a time of crisis, or has the
crisis passed—and the answers depend on the Constitution.